Superior Court, State of California
DATE: September 1, 2022 TIME: 9:00 A.M.
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|LINE # |CASE # |CASE TITLE |RULING |
|LINE 1 | 19CV361047 |MHC OPERATING LIMITED PARTNERSHIP et al vs |Click line 1 or scroll to line 1 for tentative ruling. |
| | |THE NICHOLSON FAMILY PARTNERSHIP | |
|LINE 2 | 21CV386613 |Kent Taylor vs City of Sunnyvale et al |Click line 2 or scroll to line 2 for tentative ruling. |
|LINE 3 |19CV357748 |Mark Stokes et al vs David Gonzalez et al |Click line 3 or scroll to line 3 for tentative ruling. |
|LINE 4 |19CV357748 |Mark Stokes et al vs David Gonzalez et al |Tentative ruling is included in line 3. |
|LINE 5 | 21CV381377 |Carla Gardner et al vs BMW OF NORTH AMERICA, |Click line 5 or scroll to line 5 for tentative ruling. |
| | |LLC et al | |
|LINE 6 | 21CV391941 |Bank Of America N.A. vs Norma Rangel |The motion of plaintiff Bank of America N.A. for order that matters in|
| | | |request for admission for truth of facts be admitted is GRANTED. |
| | | |Amended notice of hearing with date and time of hearing is filed. |
| | | |Opposition to motion is not filed. A failure to oppose a motion may be|
| | | |deemed a consent to the granting of the motion. CRC Rule 8.54 (c). |
| | | |Plaintiff shall prepare the order. |
|LINE 7 | 2014-1-CV-269592 |D. Mollins vs EQR-Sombra 2008 Limited |Click line 7 or scroll to line 7 for tentative ruling. |
| | |Partnership, et al | |
|LINE 8 |20CV370485 |Sunbelt Rentals, Inc. et al vs Smith-Hyder, |The motion of attorney Aaron Gruber to be relieved as attorney for |
| | |Inc. et al |defendant Smith-Hyder, Inc. is GRANTED. |
| | | |Amended notice of hearing with date and time of hearing is filed. |
| | | |Opposition to motion is not filed. |
|LINE 9 |21CV378320 |SMITH-HYDER, INC. vs CONGREGATION KOL EMETH |The motion of attorney Aaron Gruber to be relieved as attorney for |
| | |et al |plaintiff Smith-Hyder, Inc. is GRANTED. |
| | | |Amended notice of hearing with date and time of hearing is filed. |
| | | |Opposition to motion is not filed. |
|LINE 10 | 22CV397582 |Carolyn Griffen vs Bloom Energy Corporation |Stipulation for arbitration and stay of action is filed on August 25, |
| | |et al |2022. The hearing on petition to compel arbitration and joinder are |
| | | |therefore ordered off-calendar. |
|LINE 11 | 22CV397582 | Carolyn Griffen vs Bloom Energy Corporation |Included in line 10. |
| | |et al | |
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Calendar line 1
Case Name: MHC Operating Limited Partnership, et al. v. The Nicholson Family Partnership
Case No.: 19-CV-361047
Demurrer to the First Amended Complaint by Defendant The Nicholson Family Partnership
Factual and Procedural Background
This is an action for declaratory relief involving a mobile home park.
According to the first amended complaint (“FAC”), plaintiff MHC Operating Limited Partnership (“MHC”) operates and manages a mobile home park, called Westwinds Mobile Home Park (“Westwinds”), in San Jose, California, pursuant to four written ground leases with the master landlord and defendant, The Nicholson Family Partnership (“TNFP”). (FAC at ¶¶ 1, 7.) Westwinds provides affordable, rent-controlled homes to over 1,600 residents (or “subtenants”), including numerous families with children and residents over 65 years of age, pursuant to their subleases with MHC. (Id. at ¶ 1.) Plaintiff Stacey Winkelmann (“Winkelmann”) is one such resident; she moved into Westwinds about ten years ago and purchased a home soon thereafter. (Ibid.)
MHC’s four leases with TNFP expire on August 31, 2022, and the operation of Westwinds will then revert to TNFP. (FAC at ¶ 1.) But, at a meeting in December 2018, TNFP announced, for the first time, that MHC is obligated under its leases to deliver the property to TNFP free and clear of any and all subtenants (i.e., residents) upon expiration of its leases with TNFP on August 31, 2022. (Id. at ¶¶ 1, 18.) TNFP’s demand is unlawful and allegedly conflicts with the Mobilehome Residency Law and the San Jose Municipal Code. (Id. at ¶ 58.) In addition, the demand creates a present and serious controversy that threatens hundreds of residents’ legal rights and personal and economic interests, as well as the economic interests of all plaintiffs. (Id. at ¶ 2.)
On December 30, 2019, plaintiffs MHC, Countryplace Mortgage, Ltd., and Echo Financing, LLC (collectively, “Corporate Plaintiffs”) filed a complaint against defendant TNFP alleging declaratory relief and injunctive relief.
On January 29, 2020, the Corporate Plaintiffs and plaintiff Winkelmann (collectively, “Plaintiffs”) filed the operative FAC against defendant TNFP also alleging declaratory relief and injunctive relief.
On February 3, 2020, defendant TNFP filed a motion to compel arbitration and to stay the litigation. On March 2, 2020, defendant TNFP filed a renewed motion to compel arbitration and to stay litigation to address the FAC (as opposed to the original complaint). The motion was set for hearing on June 25, 2020. Prior to the hearing, the court (Hon. Folan) posted a tentative ruling denying the motion. At the hearing, defendant TNFP contested the tentative ruling and the matter was taken under submission. Thereafter, on July 8, 2020, the court issued a proposed statement of decision denying the motion to compel arbitration. On July 29, 2020, the court filed a final statement of decision denying the motion.
On August 7, 2020, defendant TNFP filed a Notice of Appeal challenging the trial court’s denial of the motion to compel arbitration. On February 4, 2022, the Sixth District Court of Appeal affirmed the order denying arbitration. On April 20, 2022, the petition for review to the California Supreme Court was denied. The case returned to the trial court on May 16, 2022.
On May 18, 2022, TNFP filed a cross-complaint against MHC alleging a single claim for breach of contract.
On May 27, 2022, TNFP filed the motion presently before the court, a demurrer to the FAC. TNFP filed a request for judicial notice in conjunction with the motion. The Corporate Plaintiffs and plaintiff Winkelmann filed separate oppositions. TNFP filed reply papers.[1]
On July 29, 2022, TNFP filed a first amended cross-complaint (“FACC”) against MHC also asserting a breach of contract cause of action.
A further case management conference is set for September 20, 2022.
Demurrer to the FAC
Defendant TNFP argues the first and second causes of action are subject to demurrer for failure to state a valid claim. (Code Civ. Proc., § 430.10, subd. (e).)
Request for Judicial Notice
“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)
Here, defendant TNFP requests judicial notice of the following:
(1) Declaration of Bruce Nicholson in Support of Defendant’s Motion to Compel Arbitration and Stay Litigation (Ex. 1);
(2) Defendant and Cross-Complainant’s Response to Plaintiffs’ Status Report for Case Status Review Hearing (Ex. 2);
(3) Request for Judicial Notice in Support of Defendant’s Motion to Compel Arbitration and Stay Litigation (Ex. 3);
(4) FAC for Declaratory and Injunctive Relief, filed January 29, 2020 (Ex. 4);
(5) Final Order and Statement of Decision RE: Motion to Compel Arbitration issued on July 29, 2020 (Ex. 5);
(6) Remittitur issued May 12, 2022 (Ex. 6);
(7) Cross-Complaint for Breach of Contract, filed May 18, 2022 (Ex. 7).
The court may take judicial notice of these exhibits under Evidence Code section 452, subdivision (d). That section provides that judicial notice may be taken of the records of any court of record of the United States or of any state of the United States. “Evidence Code section 453 requires the trial court to ‘take judicial notice of any matter specified in Section 452 if a party requests it and’ has given the adverse party sufficient notice and furnishes the court with sufficient information to enable it to take judicial notice of the matter. Evidence Code sections 452 and 453 permit the trial court to ‘take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.’ [Citations.]” (People v. Woodell (1998) 17 Cal.4th 448, 455; see Magnolia Square Homeowners Ass’n v. Safeco Ins. Co. (1990) 221 Cal.App.3d 1049, 1056 [“a court cannot take judicial notice of the truth of hearsay statements simply because the statements are part of a court record”].)
Therefore, the request for judicial notice is GRANTED.
Legal Standard
“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)
“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)
First Cause of Action: Declaratory Relief
Code of Civil Procedure section 1060, which governs actions for declaratory relief, provides: “Any person interested under a written instrument …, or under a contract, or who desires a declaration of his or her rights or duties with respect to another …may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action … for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract.”
The fundamental basis of declaratory relief is the existence of an actual and present controversy over a proper subject. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) “A general demurrer to a cause of action for declaratory relief must be overruled as long as an actual controversy is alleged; the pleader need not establish it is entitled to a favorable judgment.” (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 606.) A general demurrer is usually not an appropriate method for testing the merits of a declaratory relief action, because the plaintiff is entitled to a declaration of rights even if it is adverse to the plaintiff’s interest. (Qualified Patients Assn. v. City of Anaheim (2010) 187 Cal.App.4th 734, 752.)
Plaintiffs’ declaratory relief claim is summarized in paragraph 59 of the FAC as follows:
¶ 59: Plaintiffs respectfully request that this Court adjudicate this dispute and issue a judgment declaring that (1) MHC has no obligation to deliver the property free and clear of Westwinds residents upon the expiration of its leases with TNFP, (2) TNFP may not take any steps to remove or to cause the eviction of the Westwinds mobile home residents during MHC’s lease term, and (3) TNFP may not take steps to remove or cause the eviction of the Westwinds mobile home residents without complying with California State law and San Jose Municipal law.
Defendant TNFP raises the following arguments on demurrer: (1) the court should refrain from granting declaratory relief as TNFP filed a cross-complaint against MHC seeking damages under the same leases that are the subject of Plaintiffs’ declaratory relief claim; (2) Plaintiffs’ declaratory relief claim has become moot; (3) declaratory relief is improper in this instance under the primary jurisdiction doctrine; and (4) the declaratory relief claim is barred by the First Amendment.
Accrued Cause of Action for Breach of Contract
“Declaratory relief operates prospectively, serving to set controversies at rest before obligations are repudiated, rights are invaded or wrongs are committed. Thus the remedy is to be used to advance preventive justice, to declare rather than execute rights.” (Kirkwood v. California State Auto. Assn. Inter-Insurance Bureau (2011) 193 Cal.App.4th 49, 59.)
“Generally, an action in declaratory relief will not lie to determine an issue which can be determined in the underlying tort action. ‘The declaratory relief statute should not be used for the purpose of anticipating and determining an issue which can be determined in the main action. The object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.’ [Citation.] … [T]he court may refuse to exercise the power to grant declaratory relief where such relief is not necessary or proper at the time under all the circumstances. The availability of another form of relief that is adequate will usually justify refusal to grant declaratory relief.” (Cal. Ins. Guar. Ass’n v. Super. Ct. (1991) 231 Cal.App.3d 1617, 1623-1624.)
Here, defendant TNFP first argues declaratory relief is not appropriate because the breach of contract claim in its cross-complaint (and now FACC) constitutes an alternative form of relief in this action. (See Request for Judicial Notice [“RJN”] at Ex. 7.) But, the breach of contract claim refers only to ground leases entered into between MHC and TNFP. (Ibid.) None of the remaining plaintiffs in this action are parties to those agreements or the cross-action so resolution of that claim in the cross-action would not resolve the instant suit for declaratory relief. Furthermore, the declaratory relief claim is not simply about the ground leases, but also pertains to whether defendant TNFP can take steps to evict mobile home residents without complying with California State Law and San Jose Municipal Law. (FAC at ¶ 59.) This argument therefore is not sustainable on demurrer.
Mootness
“A case is considered moot when ‘the question addressed was at one time a live issue in the case,’ but has been deprived of life ‘because of events occurring after the judicial process was initiated.’ [Citation.] Because ‘ “the duty of … every … judicial tribunal … is to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or … to declare principles or rules of law which cannot affect the matter in issue in the case before it[,] [i]t necessarily follows that when … an event occurs which renders it impossible for [the] court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment… .” [Citations.]’ [Citation.] The pivotal question in determining if a case is moot is therefore whether the court can grant the plaintiff any effectual relief. [Citations.] If events have made such relief impracticable, the controversy has become ‘overripe’ and is therefore moot. [Citations.]” (Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1574 (Wilson).)
“When events render a case moot, the court, whether trial or appellate, should generally dismiss it. [Citations.]” (Wilson, supra, 191 Cal.App.4th at p. 1574.)
Defendant TNFP contends the action for declaratory relief is moot because the ground leases expire on August 31, 2022 (the day before the hearing on this demurrer) and it would be procedurally impossible to complete the necessary steps to displace any of the mobile home tenants. This contention however is misplaced as the issues which are the subject of the declaratory relief action will remain even after the leases expire. As the Corporate Plaintiffs’ opposition points out, those issues include whether residents can be removed, whether residents are encumbrances, whether the park will be closed, whether the park owner or manager has authority to seek a change in use of the park, and whether MHC has a continuing obligation to seek removal of residents or change use of the park. (See Corporate Plaintiffs’ OPP at p. 6:8-12; FAC at ¶¶ 36-59.) As a consequence, the declaratory relief claim is not moot and the demurrer is not sustainable on this ground.
Primary Jurisdiction Doctrine
The primary jurisdiction doctrine provides that a claim originally cognizable in the courts may be stayed to allow an administrative agency an opportunity to resolve some or all of the issues. (Jonathan Neil & Assoc., Inc. v. Jones (2004) 33 Cal.4th 917, 931-933 (Jonathan Neil).) Application of the doctrine may be appropriate if the enforcement of the claim requires the resolution of issues that are within the special competence of an administrative body. (Farmers Ins. Exchange v. Super. Ct. (1992) 2 Cal.4th 377, 390 (Farmers).) The doctrine does not foreclose judicial action, but provides the administrative body an opportunity to act if it chooses to do so. (Wise v. Pacific Gas & Electric Co. (1999) 77 Cal.App.4th 287, 296 (Wise).) The proper procedure to apply the doctrine is not to dismiss the action, but to stay the action pending resolution of the issues within the expertise of the administrative body. (Jonathan Neil, supra, 33 Cal.4th at p. 936; South Bay Creditors Trust v. General Motors Acceptance Corp. (1999) 69 Cal.App.4th 1068, 1081 (South Bay Creditors Trust).)
“[T]he primary jurisdiction doctrine advances two related policies: it enhances court decision making and efficiency by allowing courts to take advantage of administrative expertise, and it helps assure uniform application of regulatory laws.” (Farmers, supra, 2 Cal.4th at p. 391.)
“No rigid formula exists for applying the primary jurisdiction doctrine. Instead, resolution generally hinges on a court’s determination of the extent to which the policies noted above are implicated in a given case. This discretionary approach leaves courts with considerable flexibility to avoid application of the doctrine in appropriate situations, as required by the interests of justice.” (Farmers, supra, 2 Cal.4th at pp. 391-392, fns. omitted.)
“Courts have frequently applied the primary jurisdiction doctrine and stayed actions where the issues raised in the trial court action were pending before an administrative agency. [Citations.] Administrative agency involvement may serve to resolve factual issues or provide a record for subsequent judicial review. [Citation.] In addition, a stay will conserve judicial and other resources which otherwise would be consumed in litigation of issues that may be resolved by the administrative proceeding. [Citation.]” (Wise, supra, 77 Cal.App.4th at p. 296.)
Defendant TNFP asserts that, whether Westwinds can be converted to another use, or a new mobile home park can replace Westwinds, should be resolved by local government agencies with administrative expertise that are familiar with local policies and charged with interpreting land use policies.
But, as a preliminary matter, the primary jurisdiction doctrine is applied for the purpose of staying an action, pending resolution by an administrative body. (Jonathan Neil, supra, 33 Cal.4th at p. 936; South Bay Creditors Trust, supra, 69 Cal.App.4th at p. 1081.)
That is not the situation here as defendant TNFP seeks to use this doctrine to sustain the demurrer without leave to amend. Also, the doctrine has been applied in instances where issues raised in the trial court are pending before an administrative agency. (Wise, supra, 77 Cal.App.4th at p. 296.) There is nothing before the court to suggest the issues raised in connection with declaratory relief are pending before an administrative body. Finally, as pointed out in opposition by plaintiff Winkelmann, the declaratory relief action itself involves a dispute over application of state and local law to be resolved by the court, not an administrative body. (See Winkelmann OPP at p. 10:22-27; FAC at ¶¶ 50-59.) This argument therefore is not sustainable on demurrer.
First Amendment – Prior Restraint
“[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” (Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 559.)
“The term prior restraint is used ‘to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur.’ [Citation.] Temporary restraining order and permanent injunctions—i.e., court orders that actually forbid speech activities—are classic examples of prior restraints.” (Alexander v. United States (1993) 509 U.S. 544, 550.) “The special vice of a prior restraint is that communication will be suppressed, either directly or by inducing excessive caution in the speaker, before an adequate determination that it is unprotected by the First Amendment.” (Pittsburgh Press Co. v. Human Rel. Comm’n (1973) 413 U.S. 376, 390.)
The plain language of the California Constitution also prohibits prior restraints on speech: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.” (Cal. Const., art. I, § 2, subd. (a); see Dailey v. Super. Ct. (1896) 112 Cal. 94, 100.) This provision is “[a] protective provision more definitive and inclusive than the First Amendment.” (Wilson v. Super. Ct. (1975) 13 Cal.3d 652, 658.)
Finally, defendant TNFP argues the declaratory relief claim constitutes a prior restraint on its First Amendment rights to freedom of speech and to petition the government to seek closure of the park or a change in use of the land. This argument is unavailing as Plaintiffs seek a declaration of their rights and obligations under the ground leases and application of state and local law. (FAC at ¶¶ 36-59.) Plaintiffs do not seek to prohibit defendant TNFP from engaging in speech or petition under the First Amendment.
Therefore, the demurrer to the first cause of action is OVERRULED in its entirety.
Second Cause of Action: Injunctive Relief
“Injunctive relief is a remedy, not a cause of action. [Citations.] A cause of action must exist before a court may grant a request for injunctive relief.” (Ivanoff v. Bank of America, N.A. (2017) 9 Cal.App.5th 719, 734.)
Defendant TNFP contends there is no cause of action to support a remedy for injunctive relief. But, to the extent that injunctive relief is a remedy, the proper procedural vehicle is motion to strike, not demurrer. (See Caliber Bodyworks, Inc. v. Super. Ct. (2005) 134 Cal.App.4th 365, 385 [“The appropriate procedural device for challenging a portion of a cause of action seeking an improper remedy is a motion to strike.”].) That said, in opposition, the Corporate Plaintiffs have requested leave to amend to assert the request for injunctive relief as a remedy, instead of a separate cause of action which will be granted. (See Corporate Plaintiffs’ OPP at p. 9:11-15; see also City of Stockton v. Super. Ct. (2007) 42 Cal.4th 730, 747 [if the plaintiff has not had an opportunity to amend the pleading in response to a motion challenging the sufficiency of the allegations, leave to amend is liberally allowed as a matter of fairness, unless the pleading shows on its face that it is incapable of amendment].)
Consequently, the demurrer to the second cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim.
Disposition
The demurrer to the first cause of action is OVERRULED in its entirety.
The demurrer to the second cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim.
The court will prepare the Order.
- oo0oo -
Calendar line 2
Case Name: Kent Taylor v. City of Sunnyvale, et al.
Case No.: 21-CV-386613
Demurrer to the First Amended Complaint by Defendants City of Sunnyvale and Mary Cayori
Factual and Procedural Background
This case arises from an improper search.
According to the first amended complaint (“FAC”), on April 17, 2018, plaintiff Kent Taylor (“Plaintiff”) (self-represented) was shopping at a Safeway store located at 150 East El Camino Real in the City of Sunnyvale (“City”). (See FAC at p. 1 [Negligent Misrepresentation].) After Plaintiff completed his shopping and put his bags in his vehicle, he was stopped by Mary Cayori (“Cayori”) from the City’s police department. (Id. at p. 2.) She detained Plaintiff to determine if he had placed stolen items in his shopping bags. (Ibid.) Plaintiff responded he had a valid receipt for everything and encouraged the officer to review the store’s video footage to confirm. (Id. at pp. 2-3.)
Following review of the video, the officer requested permission to search the bags in Plaintiff’s vehicle. (FAC at p. 3 [Negligent Misrepresentation].) Plaintiff did not give his consent but the officer searched the vehicle anyway. (Ibid.) Two hours later, the officer completed her search of the vehicle and determined there were no stolen items. (Id. at p. 4.) Plaintiff thereafter requested an investigation from internal affairs into the incident. (Ibid.) According to a report, the City’s Department of Public Safety concluded that Cayori conducted an unreasonable search of Plaintiff’s vehicle during the theft investigation. (Id. at Ex. 1.)
On September 10, 2021, Plaintiff filed a judicial council form complaint alleging causes of action for intentional tort, fraud and intentional deceit.
On March 28, 2022, Plaintiff filed the operative judicial council form FAC asserting claims for intentional tort and negligent misrepresentation.
On May 20, 2022, defendants City, Cayori, and City’s Department of Public Safety (collectively, “Defendants”) filed the motion presently before the court, a demurrer to the FAC.[2] Plaintiff filed written opposition. Defendants filed reply papers.
A further case management conference is set for February 7, 2023.
Demurrer to the FAC
Defendants argue the FAC is subject to demurrer on the following grounds: (1) failure to comply with the Government Claims Act; (2) failure to state a claim; and (3) statute of limitations.
Legal Standard
“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)
“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)
Government Claims Act
The Government Claims Act (Gov. Code, § 810 et seq.) applies to actions against public entities and public employees. (County of Los Angeles v. Super. Ct. (2005) 127 Cal.App.4th 1263, 1267.) “Under the Act, no person may sue a public entity or public employee for ‘money or damages’ unless a timely written claim has been presented to and denied by the public entity.” (Ibid.)
“Compliance is mandatory, and cannot be excused on the theory that the entity was not surprised by the suit. ‘It is not the purpose of the claims statutes to prevent surprise. Rather, the purpose of these statutes is to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigations. [Citations.] It is well-settled that claims statutes must be satisfied even in [the] face of the public entity’s actual knowledge of the circumstances surrounding the claim. Such knowledge—standing alone—constitutes neither substantial compliance nor basis for estoppel.’ [Citation.] The failure to timely present a proper claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity. [Citation.]” (Gong v. City of Rosemead (2014) 226 Cal.App.4th 363, 374 (Gong).)
“The procedural requirements for claim presentation are prerequisites to litigation against a local public entity or employee thereof based not only on tort liability, but on any claim for ‘money or damages.’ [Citation.] A cause of action that is subject to the statutory claim procedure must allege either that the plaintiff complied with the claims presentation requirement, or that a recognized exception or excuse for noncompliance exists. A plaintiff may allege compliance with the claims requirements by including a general allegation that he or she timely complied with the claims statute. [Citation.] If the plaintiff fails to include the necessary allegations, the complaint is subject to attack by demurrer. [Citation.]” (Gong, supra, 226 Cal.App.4th at p. 363, 374.)
Here, Defendants persuasively argue that Plaintiff does not allege compliance with the claims statutes or an excuse for non-compliance. Using a judicial council form, the FAC does not allege compliance with the claims statutes. Instead, Plaintiff has checked the box stating he is excused from complying and states the following:
“Citing: Government Code, 950.8. The complaint was filed within the applicable statute of limitations, and the cause of action was reasonable discovered, after the internal affairs investigation.” (FAC at p. 2 at #9(b).)
But, this is not a proper excuse for non-compliance with the Government Claims Act. For example, Plaintiff’s vague statement regarding the statute of limitations is not a valid excuse. Nor is Plaintiff’s reliance on Government Code section 950.8 which provides:
“Any provision of a charter, ordinance or regulation heretofore or hereafter adopted by a local public entity which requires the presentation of a claim as a prerequisite to the maintenance of an action against a public employee to enforce his personal liability is invalid.”
The language of section 950.8 however only applies to a “local” regulation or ordinance, and simply indicates that a local ordinance, or regulation, cannot usurp, or modify, the necessary prerequisite of a government claim. Nor is Plaintiff relieved of compliance with the Government Claims Act by virtue of his self-representation status. (See Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267 [a litigant appearing in propria persona is entitled to the same, but no greater, consideration than other litigants and attorneys]; see also Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193 [self-represented party “held to the same restrictive procedural rules as an attorney”].)
Accordingly, the demurrer to the FAC is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to comply with the Government Claims Act. (See City of Stockton v. Super. Ct. (2007) 42 Cal.4th 730, 747) [if the plaintiff has not had an opportunity to amend the pleading in response to a motion challenging the sufficiency of the allegations, leave to amend is liberally allowed as a matter of fairness, unless the pleading shows on its face that it is incapable of amendment].)
Failure to State a Claim
“Public entities in California are not liable for tortious injury unless liability is imposed by statute. [Citation.] ‘[S]overeign immunity is the rule in California; governmental liability is limited to exceptions specifically set forth by statute.’ [Citations.]” (San Mateo Union High School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 427 (San Mateo Union High School Dist).)
“[Government Code] Section 815 establishes that public entity tort liability is exclusively statutory: ‘Except as otherwise provided by statute: [¶] (a) A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.’ ” (C.A. v. Williams S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868.)
“ ‘This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation. In the absence of a constitutional requirement, public entities may be held liable only if a statute (not including a charter provision, ordinance or regulation) is found declaring them to be liable. … [¶] … [¶] … [T]here is no liability in the absence of a statute declaring such liability.’ [Citation.]” (Corona v. State of California (2009) 178 Cal.App.4th 723, 728.)
“This means that ‘ “liability of public entities must be based on a specific statute declaring them to be liable, or at least creating some specific duty of care” ’ to the plaintiff. [Citations.]” (San Mateo Union High School Dist., supra, 213 Cal.App.4th at p. 428.) “The law’s clear purpose was ‘ “ ‘not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances.’ ” ’ [Citation.]” (Ellerbee v. County of Los Angeles (2010) 187 Cal.App.4th 1206, 1214.)
Defendants persuasively argue the FAC fails to allege a statutory basis for Plaintiff’s claims against the City. Instead, Plaintiff alleges claims for an unknown intentional tort and negligent misrepresentation that do not arise from any particular statute.
Furthermore, Plaintiff does not allege sufficient facts to state a claim for negligent misrepresentation. “The elements of a negligent misrepresentation are ‘(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another’s reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage.’ [Citation.] Negligent misrepresentation does not require knowledge of falsity, unlike a cause of action for fraud. [Citation.]” (Tindell v. Murphy (2018) 22 Cal.App.5th 1239, 1252.) While the pleading refers to elements of a negligent misrepresentation claim, Plaintiff fails to allege facts to support a cause of action. For example, even though Plaintiff disagrees with the manner in which he was treated by defendant Cayori, he fails to identify any misrepresentation by her to state a claim for negligent misrepresentation. And there are no facts pled to support a claim for the unknown unintentional tort.
Consequently, the demurrer to the FAC is also SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim.
Statute of Limitations
As the demurrer is sustained for reasons stated above, the court declines to consider the statute of limitations argument.
Disposition
The demurrer to the FAC is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to comply with the Government Claims Act and failure to state a valid claim.
The court will prepare the Order.
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Case Name: Stokes, et al. v. Gonzalez, et al.
Case No.: 19CV357748
On October 7, 2018, decedent Mark Stokes (“Decedent”) attended a San Francisco Forty Niners football game at Levi’s Stadium in Santa Clara with his friends Chris Martinez and Alexander Garcia. (See Pls.’ separate statement of undisputed material facts in opposition to Forty Niners Stadium Management Company LLC’s motion for summary judgment, nos. (“UMFs”) 3, 5.) Defendant David Gonzales (“Gonzales”) also attended the game with his girlfriend Alma Alicia Castro and friends Erica Neraida Castro and Joel Olvera Rodriguez. (See UMF 8.) Prior to the subject incident, there were no known interactions between the two groups. (See UMF 11.) After watching the game, Decedent walked back to Martin’s car through Red Lot 1 and kicked a bottle that was lying on the ground which struck the side of Gonazlez’s vehicle. (See UMFs 13-15.) Gonzales immediately confronted Decedent and then punched him in the face with a closed fist, causing Decedent to fall backwards to the ground. (See UMF 16.) Decedent attempted to get back up and Gonzales struck him in the face a second time with a closed fist, causing Decedent to fall backwards again, wherafter Decedent laid still. (See UMF 17.) Gonzales then fled the scene. (See UMF 18.) The incident occurred within a matter of seconds. (See UMF 19.) The incident was reported to Levi’s Stadium Code of Conduct officer Monica Marie Esquivel and an Incident Report was created in the Levi’s Staidum 24/7 security system, Emergency Medical Services (EMS) were dispatched, and EMS administered on-scene treatment and transported Decedent to Valley Medical Center. (See UMF 20.) Santa Clara Police Department roving bike officers were also dispatched to the scene following the report of the assault and took statements, issuing a Ramey warrant for Gonzales’ arrest. (See UMF 21.) Officers arrested Gonzales the next day and on August 5, 2019, Gonzales pled no contest to the charge of assault. (See UMF 22.)
On October 30, 2019, Decedent filed a complaint against defendants Landmark Event Staffing Services (“Landmark”), DeBartolo Corporation (“DC”), Santa Clara Stadium Authority, City of Santa Clara, ManCo, San Francisco 49ers, LTD, and Forty Niners Stadium, LLC. In 2021, Decedent moved to Florida and died that year. (See UMF 40.) On February 22, 2022, plaintiffs Brooke Stokes and Cheyenne Stokes, by and through Guardian Ad Litem Jessica Flores, were substituted as Decedent’s successors-in-interest, asserting causes of action for:
1) Negligence (against Forty Niners Stadium Mgmt., Co., Ltd. (“49ers Stadium”), Landmark, and Gonzales);
2) Premises liability-negligence (against 49ers Stadium and Landmark) and dangerous condition of public property (against Santa Clara Stadium Authority and/or City of Santa Clara); and,
3) Intentional Tort (against Gonzales).
Defendant 49ers Stadium moves for summary judgment. Defendant Landmark separately moves for summary judgment, or, in the alternative, for summary adjudication of the causes of action against it.
49ERS STADIUM’S MOTION FOR SUMMARY JUDGMENT
Defendant’s burden on summary judgment
“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action. … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72; internal citations omitted; emphasis added.)
“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil et al., Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007) ¶ 10:241, p.10-91, citing Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 334; emphasis original.) “The moving party’s declarations and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to avoid unjustly depriving the plaintiff of a trial.’” (Id. at § 10:241.20, p.10-91, citing Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.)
“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion.) Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id. at ¶ 10:242, p.10-92, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.)
49ers Stadium meets their initial burden to demonstrate a lack of causation
49ers Stadium asserts that Plaintiffs cannot prove that 49ers Stadium allegedly inadequate security measures were the cause of Decedent’s injuries since Stokes provoked an unforeseeable criminal assault by kicking a bottle at Gonzales’ vehicle, 49ers Stadium provided adequate police and security personnel, Decedents’ responses to discovery regarding breach and causation were factually devoid, and California’s Dram Shop Laws immunize 49ers Stadium from liability.
Here, “the plaintiff must show that the defendant owed [Decedent] a legal duty of care, the defendant breached that duty, and the breach was a proximate or legal cause of [Decedent’s] injury.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 772.) The California Supreme Court spoke at length on causation in Saezler, supra, in which the plaintiff was injured on the defendants’ premises by the criminal assault of third persons, and likewise “sought to recover damages from defendants on the theory that they breached their duty of care toward her” (id.), stating:
In Sharon P., the plaintiff was criminally assaulted by unknown assailants in an underground parking garage. She sued the garage owner for failure to provide adequate security measures for its tenants and, as here, the trial court granted summary judgment against her. Although in Sharon P. we were concerned with the question of the defendants' duty to provide security guards and other security measures, we also spoke briefly on the separate subject of causation, observing that it was "questionable whether plaintiff's proposed [security] measures would have been effective to protect against the type of violent assault that occurred here." (Sharon P., supra, 21 Cal. 4th at p.1196.) We noted that the courts "have rejected claims of abstract negligence pertaining to the lighting and maintenance of property where no connection to the alleged injuries was shown. [Citations.]" (Id. at pp.1196-1197, fn. omitted, italics added.)
In Sharon P., supra, 21 Cal. 4th at page 1197, we cited with approval three Court of Appeal cases holding that, assuming the defendant owed and breached a duty of care to the plaintiff, she nonetheless cannot prevail unless she shows the breach bore a causal connection to her injury. (Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 435-439 [20 Cal. Rptr. 2d 97] (Nola M.); Constance B. v. State of California (1986) 178 Cal.App.3d 200, 211-212 [223 Cal. Rptr. 645] (Constance B.); Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 915-918 [214 Cal. Rptr. 395] (Noble).) These cases are close on point and their analyses are instructive.
In Noble, the plaintiff was assaulted in a parking lot at Dodger Stadium and sued the stadium owner on the theory it failed to provide adequate security for its patrons. At trial, the plaintiff's expert witness opined that the owner should have employed more security guards to patrol the area, and the jury awarded the plaintiff substantial damages. On appeal, the court reversed, holding that "abstract negligence," without proof of a causal connection between the defendant's breach and the plaintiff's injury, is insufficient to sustain the award. (Noble, supra, 168 Cal. App. 3d at pp. 916, 918.)
In Constance B., the plaintiff was assaulted at night in the restroom at a state highway rest area. The appellate court affirmed a grant of summary judgment in defendant state's favor, holding that the plaintiff, who saw her attacker watching her when she entered the restroom, failed to submit evidence showing that additional lighting would have prevented the attack. (Constance B., supra, 178 Cal.App.3d at pp. 211-212.) The court observed that "If liability may be premised solely on this notion [that criminals are generally deterred by strong lighting], proprietors will become the insurers of the safety of persons on their premises, subject only to the caprice of particular juries. [Citation.]" (Id. at p. 212.)
In Nola M., the plaintiff was raped on a college campus and sued the college on the theory it should have provided more campus security. On appeal from a judgment in the plaintiff's favor, the Nola M. court reversed. The court assumed for purposes of argument that the plaintiff had submitted sufficient evidence that the defendant breached a duty of care toward her, but concluded that she failed to prove the breach was a legal cause of the assault. (Nola M., supra, 16 Cal.App.4th at pp.427-428.) The court observed that to demonstrate actual or legal causation, the plaintiff must show that the defendant's act or omission was a "substantial factor" in bringing about the injury. (Id. at p.427; see Mitchell v. Gonzales (1991) 54 Cal. 3d 1041, 1049, 1052-1054 [1 Cal. Rptr. 2d 913, 819 P.2d 872]; Rest.2d Torts, § 430, 431, subd. (a).) Nola M. concluded that the plaintiff must do more than simply criticize, through the speculative testimony of supposed security "experts," the extent and worth of the defendant's security measures, and instead must show the injury was actually caused by the failure to provide greater measures. (Nola M., supra, 16 Cal. App. 4th at p. 435.) The court observed that a different rule would "make the landowner the insurer of the absolute safety of everyone who enters the premises." (Id. at p.437.)
In addition to the foregoing three appellate cases cited in our Sharon P. decision, other California cases support the rule that the plaintiff must establish, by nonspeculative evidence, some actual causal link between the plaintiff's injury and the defendant's failure to provide adequate security measures. (See Leslie G., supra, 43 Cal. App. 4th at pp. 480-488; Thai v. Stang (1989) 214 Cal. App. 3d 1264, 1276 [263 Cal. Rptr. 202] [characterizing as "pure speculation" expert testimony that absence of added security contributed to criminal assault]; Lopez v. McDonald's Corp. (1987) 193 Cal. App. 3d 495, 515 [238 Cal. Rptr. 436] [restaurant's failure to hire security guard not shown to have been "substantial factor" in causing injuries from gunman's attack].)
Although each of the foregoing cases supports defendants' position here, Leslie G. is perhaps closest on point, being an appeal following summary judgment for the defendant. There, the plaintiff alleged she was raped by an unknown assailant while in the garage of her apartment building. She sued the building owners, asserting their negligence in failing to repair a broken security gate might have allowed her assailant to enter the garage. As in the present case, the plaintiff's security expert testified at his deposition that the apartment was located in a high-crime area, that functioning security gates were critical to ensuring tenants' safety, and that the nonfunctioning gates allowed the assailant to enter and ultimately assault the plaintiff. The expert stated his opinion that the defendant should have hired an on-site manager to perform regular inspections and repairs of the gate and other entrances, to ensure the building's continued safety. He also opined that the assailant had selected the garage because of its isolated, remote nature, and the opportunities to hide and escape if necessary. (Leslie G., supra, 43 Cal.App.4th at pp.478-479.)
In Leslie G., as here, the trial court granted the defendant summary judgment on the ground the plaintiff had failed to establish a sufficient causal connection between the defendant's negligence and the assault. Unlike the present case, in Leslie G. the Court of Appeal affirmed summary judgment, holding that the security expert's opinions were too speculative to furnish a causal link between the defendant's negligence and the assault. The court also observed that "Since there is no direct evidence that the rapist entered or departed through the broken gate (or even that the broken gate was the only way he could have entered or departed), [plaintiff] cannot survive summary judgment simply because it is possible that he might have entered through the broken gate. [Citations.]" ( Leslie G., supra, 43 Cal. App. 4th at p. 483.)
As here, the plaintiff in Leslie G. had argued that her expert's opinion testimony was sufficient to create a triable issue of fact regarding causation. The court disagreed, observing that expert opinion resting solely on speculation and surmise is inadequate to survive summary judgment because it fails to establish a “'reasonably probable causal connection’” between the defendant's negligence and the plaintiff's injury. (Leslie G., supra, 43 Cal.App.4th at p.487, quoting from an earlier case, italics omitted.) The court concluded that "a tenant's negligence action against her landlord for injuries resulting from the criminal assault of a third person must be supported by evidence establishing that it was more probable than not that, but for the landlord's negligence, the assault would not have occurred. Where, as here, there is evidence that the assault could have occurred even in the absence of the landlord'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, or on an expert's opinion based on inferences, speculation and conjecture. In this case, where there is no factual basis for the expert's opinion or for [the plaintiff's] general assertion of causation, the conclusion is unavoidable that summary judgment was properly granted." (Id. at p.488, italics added, fn. omitted.)
Leslie G. and the other cases cited above fully support the trial court's summary judgment ruling in this case. Here, by reason of the prior criminal assaults and incidents on the premises, defendants may have owed a duty to provide a reasonable degree of security to persons entering them. For purposes of discussion, we assume defendants breached that duty by failing (1) to keep all entrance gates locked and functioning, and (2) to provide additional daytime security guards to protect persons such as plaintiff. But the evidence fails to show that either breach contributed to plaintiff's injuries in this case. As Professors Prosser and Keeton observe, "A mere possibility of such causation is not enough; and 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." (Prosser & Keeton, Torts (5th ed. 1984) § 41, p. 269, fns. omitted, italics added.)
… despite the speculative opinion of plaintiff's expert, she cannot show that defendants' failure to provide increased daytime security at each entrance gate or functioning locked gates was a substantial factor in causing her injuries. (See Nola M., supra, 16 Cal.App.4th at p. 427; Mitchell v. Gonzales, supra, 54 Cal. 3d at pp. 1049, 1052-1054; Rest.2d Torts, § 431, subd. (a).) Put another way, she is unable to prove it was "more probable than not" that additional security precautions would have prevented the attack. (Leslie G., supra, 43 Cal.App.4th at p.488; see Prosser & Keeton, Torts, supra, § 41, p. 269 [plaintiff must show it more likely than not defendant's conduct was cause in fact of the result; "mere possibility of such causation is not enough"]; Rest.2d Torts, § 433B, com. a, p. 442.)
…
Plaintiff, citing her expert's declaration, opines that her injuries could have been avoided if defendants had hired roving security guards to patrol the entire premises during the day as well as at night. Aside from the inordinate expense of providing such security for a 28-building apartment complex, the argument is entirely speculative, as assaults and other crimes can occur despite the maintenance of the highest level of security. (See Sharon P., supra, 21 Cal. 4th at p. 1196; Nola M., supra, 16 Cal.App.4th at pp.430, 435-436; Noble, supra, 168 Cal.App.3d at p. 918 ["No one can reasonably contend that even a significant increase in police personnel will prevent all crime or any particular crime"].) As previously noted, "proof of causation cannot be based on . . . an expert's opinion based on inferences, speculation and conjecture." (Leslie G., supra, 43 Cal.App.4th at p. 488; see Nola M., supra, 16 Cal.App.4th at p.435.) Despite her expert's speculation, plaintiff cannot show that roving guards would have encountered her assailants or prevented the attack. As the dissenting Court of Appeal justice in this case observed, "A 300-unit, 28-building apartment complex contains many rooms, halls, entries, garages, and other spaces where a rape could take place despite extensive security patrols."
Finally, as Nola M. asks, "where do we draw the line? How many guards are enough? Ten? Twenty? Two hundred? . . . To characterize a landowner's failure to deter the wanton, mindless acts of violence of a third person as the 'cause' of the victim's injuries is (on these facts) to make the landowner the insurer of the absolute safety of everyone who enters the premises." (Nola M., supra, 16 Cal. App. 4th at p. 437; see also 7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal. App. 3d 901, 905 [172 Cal. Rptr. 528].) Moreover, as the Court of Appeal dissent in the present case observed, the ultimate costs of imposing liability for failure to provide sufficient daytime security to prevent assaults would be passed on to the tenants of low-cost housing in the form of increased rents, adding to the financial burden on poor renters.
Plaintiff argues that a footnote in an earlier case supports her argument that the trial court's findings of the foreseeability of plaintiff's injury necessarily also establishes the element of causation. (See Isaacs v. Huntington Memorial Hospital (1985) 38 Cal. 3d 112, 131, fn. 8 [211 Cal. Rptr. 356, 695 P.2d 653] [affirmative finding on foreseeability issue would establish close connection between defendant's conduct and injury suffered].) But in the present case, the trial court's foreseeability finding was only that, given the high-crime area and history of incidents, defendants could generally foresee that criminal assaults of some kind might occur on the premises. The court did not find that defendants' failure to provide increased security despite the foreseeability of assaults actually caused plaintiff's injuries. Indeed, the court specially found that plaintiff did not prove any such causal link.
The Isaacs footnote was written in the context of an assault occurring in a dark, isolated parking lot lacking security guards or proper lighting, under circumstances in which the defendant could clearly foresee that its omissions would contribute to the very assault which occurred there. We did not intend to suggest in Isaacs that a general finding of the foreseeability of some kind of future injury or assault on the premises inevitably establishes that the defendant's omission caused plaintiff's own injuries. Actual causation is an entirely separate and independent element of the tort of negligence. (See Sharon P., supra, 21 Cal. 4th at p. 1188; Nola M., supra, 16 Cal. App. 4th at p. 428, fn. 5 [referring to Isaacs's "rather astonishing proposition" that finding of foreseeability would include finding of causation]; Noble, supra, 168 Cal. App. 3d at pp. 915-916 [noting Isaacs's "enigmatic reference" to causation].)
…
Leslie G. and Nola M. explain that, to demonstrate actual or legal causation, the plaintiff must show that the defendant's act or omission was a "substantial factor" in bringing about the injury. (Leslie G., supra, 43 Cal. App. 4th at p. 481; Nola M., supra, 16 Cal. App. 4th at p. 427; see Mitchell v. Gonzales, supra, 54 Cal. 3d at pp. 1049, 1052-1054; Rest.2d Torts, § 430-431.) In other words, plaintiff must show some substantial link or nexus between omission and injury….
Nola M. lucidly explained that "WE THINK IT COMES DOWN TO THIS: When an injury can be prevented by a lock or a fence or a chain across a driveway or some other physical device, a landowner's failure to erect an appropriate barrier can be the legal cause of an injury inflicted by the negligent or criminal act of a third person. [Citations.] But where, as here, we are presented with an open area which could be fully protected, if at all, only by a Berlin Wall, we do not believe a landowner is the cause of a physical assault it could not reasonably have prevented. (Noble v. Los Angeles Dodgers, Inc., supra, 168 Cal. App. 3d at p. 918 ['No one can reasonably contend that even a significant increase in police personnel will prevent all crime or any particular crime'].)" (Nola M., supra, 16 Cal. App. 4th at pp. 436-437.) Or as Leslie G. succinctly observed, if the plaintiff in that case could have proved her rape could have been prevented by a working security gate, "we wouldn't be having this discussion." (Leslie G., supra, 43 Cal. App. 4th at p. 485, fn. 5.)
…
But again, even assuming a triable issue existed regarding the extent or reasonableness of defendants' security efforts, even a flagrant failure to provide such measures would not justify shifting to defendants the burden of conclusively proving the absence of causation. No matter how inexcusable a defendant's act or omission might appear, the plaintiff must nonetheless show the act or omission caused, or substantially contributed to, her injury. Otherwise, defendants might be held liable for conduct which actually caused no harm, contrary to the recognized policy against making landowners the insurer of the absolute safety of anyone entering their premises. (See Sharon P., supra, 21 Cal. 4th at p. 1195; Ann M., supra, 6 Cal. 4th at p. 679; Nola M., supra, 16 Cal. App. 4th at p. 437.)
…a defendant meets its burden of showing that a cause of action has no merit "if that party has shown that one or more elements of the cause of action . . . cannot be established . . . ." Once the defendant meets the foregoing burden, "the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action . . . [and] 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).) As stated in Leslie G., supra, 43 Cal. App. 4th at page 482, "Under the current version of the summary judgment statute, a moving defendant need not support his motion with affirmative evidence negating an essential element of the responding party's case. Instead, the moving defendant may . . . point to the absence of evidence to support the plaintiff's case. When that is done, the burden shifts to the plaintiff to present evidence showing there is a triable issue of material fact. If the plaintiff is unable to meet her burden of proof regarding an essential element of her case, all other facts are rendered immaterial. [Citations.]" (See also Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal. 4th 953, 968-969 [67 Cal. Rptr. 2d 16, 941 P.2d 1203].)
In short, plaintiff cannot prove that defendants' omissions were a substantial factor in causing her injuries, and no proper basis exists for shifting the burden of proof on that issue to defendants. Plaintiff has had ample opportunity, through pretrial discovery, to marshal evidence showing that defendants' asserted breach of duty actually caused her injuries. The evidence at hand, however, merely shows the speculative possibility that additional daytime security guards and/or functioning security gates might have prevented the assault. Plaintiff's evidence is no less speculative because she offered a security expert's testimony. Because he was equally unaware of the assailants' identities, his opinion regarding causation is simply too tenuous to create a triable issue whether the absence of security guards or functioning gates was a substantial factor in plaintiff's assault.
The judgment of the Court of Appeal is reversed with directions to affirm the award of summary judgment in defendants' favor.
(Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 772-781.)
Here, it is undisputed that: Decedent attended the October 7, 2018 game at Levi’s Stadium (UMFs 3, 5); after the game’s conclusion, Decedent exited through the main stadium exit and walked back to his friend Jesse Lee Martin’s vehicle, on a path through Red Lot 1 where defendant Gonzales was drinking beer (UMFs 12-13); Decedent and Gonzales did not previously interact with each other prior to this incident (UMF 11); as Decedent approached Gonzales, he kicked a bottle that had been left lying on the ground, which struck the side of Gonzales’ vehicle (UMF 15); Gonzales immediately confronted Decedent and thereafter punched Decedent in the face with a closed fist, causing Decedent to fall backwards to the ground (UMF 16); Decedent attempted to get back up, but Gonzales struck him in the face a second time with a closed fist, causing Decedent to fall backwards again, after he which he laid still (UMF 17); as a crowd of people gathered to check on Decedent, Gonzales walked back towards his vehicle and then drove away from the incident (UMF 18); the entire incident, from Decedent kicking the bottle to Gonzales throwing the two punches occurred within a matter of seconds (UMF 19); the incident was reported to Levi’s Stadium Code of Conduct officer Monica Marie Esquivel and an Incident Report was created in the Levi’s Stadium 24/7 security system and Emergency Medical Services were dispatched, and after administering on-scene treatment, Decedent was transported to Valley Medical Center (UMF 20); Santa Clara Police Department roving bike officers were also dispatched to the scene following the report of the assault, took witness statements and issued a Ramey warrant for Gonzales’ arrest (UMF 21); Gonzales was arrested and on August 5, 2019, Gonzales pleaded no contest to the charge of assault by means of force likely to produce great bodily injury in violation of Penal Code section 245(a)(4) (UMF 22); 49ers Stadium coordinates with the City of Santa Clara as well as several other law enforcement agencies to enact a Public Safety Plan for stadium events and develops an Event Action Plan for each NFL game as necessary to address gameday-specific security issues such as rivalry games (UMF 24); pursuant to the October 7, 2018 EAP, there were over 961 security personnel deployed throughout Levi’s Stadium and the adjacent parking lots (UMF 25); the Levi’s Stadium security deployment included 397 uniformed security personnel and 38 off-duty police officers employed by Defendant Landmark Security Services (UMF 26); the security deployment also included 123 uniformed, on-duty Santa Clara Police Department officers patrolling the area, including multiple bike patrol units, or “rovers,” in the Levi’s Stadium parking lots (UMF 27); the security deployment further included 29 uniformed, on-duty California Highway Patrol (CHP) officers and 33 CHP Traffic Control Staff (UMF 28); the security deployment further included 15 Forty Niners Temporary Holding Facility and Command staff (UMF 29); the security deployment also included 27 uniformed, on-duty Santa Clara Sheriff’s deputies (UMF 30); the security deployment also included 9 uniformed on-duty San Francisco County Sheriff’s deputies (UMF 31); the security deployment also included 262 Guest Services Representatives and 28 Logistics Staff Members (UMF 32); on the date of the incident Levi’s Stadium was one of a few venues certified under the Department of Homeland Security and Technology Directorate’s Support Anti-Terrorism by Fostering Effective Technologies Act (the “SAFETY Act”)—Plaintiffs assert that 14 NFL teams were certified on the date of the incident (UMF 34); certification under the SAFETY Act requires a multi-tiered process of personnel training and security planning for safety (UMF 35); at the time of the incident, 49ers Stadium had further required its personnel to undergo training and certification for security and fan conduct under NFL best practices (UMF 36); 49ers Stadium also required employees to complete training under the National Center for Spectator Sports Safety and Security’s Commercial Sports and Entertainment Facilities Safety and Security Best Practices Guide (UMF 37); 49ers Stadium employees serving alcohol to fans are required to undergo monthly training and certification as necessary to ensure responsible service of alcohol (UMF 38); Plaintiffs allege that 49ers Stadium and Landmark failed to provide reasonably adequate security measures, permitted known criminals and/or gang members to be present, failed to promote responsible consumption of alcohol and instead promoted excessive consumption of alcohol before, during and after Stadium events, and failed to eject from the Stadium and parking lots persons consuming alcohol after the game had ended and/or exhibiting drunk or disorderly conduct (UMF 39); and, Plaintiffs allege that the subject incident caused Decedent to have serious brain damage and ultimately death (UMF 42). 49ers Stadium also presents responses to special and form interrogatories regarding Plaintiffs’ claims that do not provide a factual basis as to causation of Decedent’s injuries by 49ers Stadium. (See Edlin decl., exhs. Q and R.) 49ers Stadium also presents deposition testimony of Gonzales, who testifies that immediately before the incident, Gonzales and his friends were loading the car and his friend Erica Castro said that she had to go to the bathroom and was about to when Decedent then kicked the bottle at the vehicle and was charging at Gonzales, Gonzales thought he was being attacked, Gonzales punched him, Decedent got up and came directly towards Gonzales again, and Gonzales punched him again, and that the subject incident occurred within 5 to 7 seconds. (See Edlin decl., exh K (“Gonzales depo”), pp.13:11-25, 14:1-25, 15:1-23, 32:20-25, 33:1-25, 34:1-25, 69:10-25, 70:1-20, 93:10-16.) 49ers Stadium also presents the deposition testimony of Alma Castro who states that after Decedent kicked the bottle at the car, Decedent went towards Gonzales and they started to fight, Gonzales hit Decedent and Decedent “kept going, like, back to him… trying to fight him” and she thought Decedent was trying to hit Gonzales “because he kept going back toward him,” and prior to the second punch, Gonzales was walking away from him towards the car but Decedent went towards Gonzales again and Gonzales turned around and punched Decedent. (See Edlin decl., exh. L (“Alma Castro depo”), pp.32:4-25, 36:5-25, 37:1-25, 38:1-18.) A screenshot of the video capture of the subject incident are attached as exhibits C-F to the Edlin declaration, supporting the account that Decedent approached the Gonzales group at 4:51:32 PM, Gonzales struck him and Decedent fell at around 4:51:44 PM, Decedent then was punched again and fell again at 4:51:50 PM and Gonzales and Alma Castro drove away from the scene of the incident at 4:55:07 PM. (See Edlin decl., ¶¶ 5-8, exhs. C-F.) The declaration of Jim Mercurio addresses many of the issues with regards to the security deployment. Plaintiffs’ objections to evidence nos. 1-3 are not in compliance with Rule of Court 3.1354, subd. (b)(1)-(3) and are therefore OVERRULED.
In opposition, Plaintiffs argue that 49ers Stadium has not met its initial burden because Mr. Mercurio’s declaration fails to fails to establish that 49ers Stadium had adequate security because it fails to lay a foundation for the timestamps of the events of the assault and response, Mercurio does not know if he was in the parking lots on the day of the incident, and it fails to state in his declaration that any security was present at the stadium and parking lots, only that he planned deployment called for it. (See Pls.’ opposition to 49ers Stadium’s motion for summary judgment, p.3:3-28.) However, Plaintiffs fail to address the effect of Decedent’s provoking the subject unforeseeable criminal assault by kicking a bottle at Gonzales’ vehicle on the causation of Decedent’s injuries. Plaintiffs argue that they present other evidence rebutting certain evidence; but that demonstrates a triable issue of material fact, and does not address whether the defendant has failed to meet its initial burden. Although Plaintiffs also apparently concede that Decedent’s responses to discovery fail to demonstrate causation; they nonetheless argue that the discovery responses “contain the facts known to Decedent at the time” and these responses can only support summary judgment if they show that the plaintiff does not possess and cannot reasonably obtain needed evidence, and they have since obtained the needed evidence. (Id. at p.4:19-25, citing Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1102.) However, Leyva, supra, 20 Cal.App.5th 1095, cited by Plaintiffs, actually states that “a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred.” (Id at pp.1102-1103.) Here, as the instant matter involves Decedent provoking the criminal assault by kicking a bottle at his assailant’s vehicle, the factually devoid discovery responses reasonably infers an absence of admissible evidence. Plaintiffs’ argument that 49ers Stadium fails to meet its initial burden on summary judgment is unpersuasive.
Here, 49ers Stadium meets its initial burden to demonstrate a lack of causation of Decedent’s injuries and the conduct of 49ers Stadium.
In opposition, Plaintiffs fail to provide non-speculative evidence demonstrating the existence of a triable issue of material fact as to whether 49ers Stadium’s conduct or omissions were a substantial factor in causing Decedent’s injuries.
Plaintiffs also argue that it raises issues of material fact concerning Defendants’ breach of its duty to Decedent. (Pls.’ opposition to 49ers Stadium’s motion for summary judgment, p.4:1-18.) However, the breach of a duty is not at issue in this motion; rather, the relevant inquiry is whether there is a triable issue as to causation.
Plaintiffs apparently concede on the issue of the immunity from liability under the Dram Shop Laws pursuant to Business and Professions Code section 25602, subdivision (b).
In recognizing the difficulty in overcoming the case authority in both Noble and Saezler, Plaintiffs argue that:
Noble and Saezler are distinguishable because there was no causal link between the defendants’ conduct and the plaintiffs’ injuries that could be sufficiently established such that it was more than speculation whether the defendant’s omissions were a cause of the criminal third party act. Here, however, a jury need not rely on speculation because there is a sufficient factual nexus between the assault and defendant’s failure to enforce its rules that fans cannot loiter, tailgate and continue drinking in the parking lot during and after the game. Here, if defendant had exercised reasonable care in providing security in the parking lot, defendant Gonzales would more likely than not have left before Decedent came along, or at least would have been aware of security in the area and deterred him from committing the assault. Here, defendant Gonzales took advantage of defendant’s lapse.
(Pls.’ opposition to 49ers Stadium’s motion for summary judgment, p.6:1-10.)
Plaintiffs do not cite to any specific evidence to support these conclusions in their memorandum. Plaintiffs present the declaration of Gil Fried, a purported safety expert for sports facilities. However, the only paragraphs of the Fried declaration cited by the separate statement in opposition are paragraphs 9-14. (See UMFs 25, 27, 33, 34 and ADFs 1-3, 12.) These paragraphs criticize Mercurio’s statements in his declaration, and makes certain statements regarding security personnel training and the effectiveness of visible security. These paragraphs do not establish that it was more probable than not that, but for the 49ers Stadium’s negligence, the assault would not have occurred. (See Saezler, supra, 25 Cal.4th at p.775 (stating that a negligence action “for injuries resulting from the criminal assault of a third person must be supported by evidence establishing that it was more probable than not that, but for the landlord's negligence, the assault would not have occurred… [w]here, as here, there is evidence that the assault could have occurred even in the absence of the landlord'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, or on an expert's opinion based on inferences, speculation and conjecture… [i]n this case, where there is no factual basis for the expert's opinion or for [the plaintiff's] general assertion of causation, the conclusion is unavoidable that summary judgment was properly granted… [a] mere possibility of such causation is not enough”).) Here, there is evidence that the assault could and would have occurred even in the absence of any defendant’s negligence: Decedent kicked the bottle, hitting Gonzales’ car, moved towards Gonzales, and after being hit, continued to move towards Gonzales—all within as little as 5-7 seconds. Fried’s suggestion that more visible officers would somehow more probably than not prevent the criminal assault or Gonzales’ reaction to having a bottle kicked in his direction and hitting his vehicle, is not supported by the declaration. In fact, Fried does not make that opinion; paragraphs 9-14 do not state that but for any negligence by 49ers Stadium in providing a more visible security presence that it would be more probable than not that the assault would not have occurred. Even if Fried so made such a statement, it would be based on inferences, speculation and conjecture as there are no statements referencing Decedent’s kicking the bottle, hitting Gonzales’ car and the subsequent criminal assault occurring in a matter of seconds, the proximity of purported security presence necessary to prevent the assault, the amount of increased security officers necessary to ensure the presence of a security officer within the proximity of a person in the parking lot who would then more probably than not be able to prevent the assault within the seconds of the Decedent’s kicking of the bottle toward Gonzales and hitting his vehicle. Paragraph 22—not cited in the separate statement—does conclude that if “responsible and properly trained security personnel [were] present in the parking lot before [Decedent] was injured, they more likely than not would have seen Gonzales and his group loitering, tailgating and consuming alcohol and… t[old] them to leave… [and h]ad Gonzales been asked to leave it is more likely than not that he would have already left the parking lot before [Decedent] was there, or at the very least he would have been deterred form [sic] violence knowing security was in the area.” (Fields decl., ¶ 22.) This is speculative on multiple levels as it requires the presence of security personnel in the parking lot, those personnel to see Gonzales and his friends, those personnel to determine that they were actually loitering as opposed to waiting for a friend to use the restroom such that they could ask the group to leave; Gonzales and his friends deciding to leave without waiting for Erica Castro to use the restroom, and all before Decedent kicks a bottle towards Gonzales, hitting Gonzales’ vehicle and then moving towards Gonzales. (See Saezler, supra, 25 Cal.4th at p.777 (stating that “[d]espite her expert's speculation, plaintiff cannot show that roving guards would have encountered her assailants or prevented the attack… the argument is entirely speculative, as assaults and other crimes can occur despite the maintenance of the highest level of security… [f]inally, as Nola M. asks, ‘where do we draw the line? How many guards are enough? Ten? Twenty? Two hundred?’”).) Both Gonzales and Alma Castro testified that Gonzales thought he was being attacked by Decedent when Decedent moved towards Gonzales after kicking the bottle, hitting Gonzales’ vehicle. Moreover, Fields’ statement is not supported by the facts. While Plaintiffs dispute the time stamps of the video showing the event, Fields does not cite to evidence indicating an amount of time for the security personnel’s response to Gonzales’ friends talking after packing their vehicle such that the security personnel would have been able to talk to Gonzales before Decedent kicked the bottle, hitting Gonzales’ car. Here, “there is no factual basis for the expert's opinion or for [Plaintiffs’] general assertion of causation.” (Saezler, supra, 25 Cal.4th at p.775.)
In opposition, Plaintiffs fail to demonstrate the existence of a triable issue of material fact as to causation. Accordingly, 49ers Stadium’s motion for summary judgment is GRANTED.
49ers Stadium’s objections nos. 1, 4, 7, 9-11 are SUSTAINED. 49ers Stadium’s objections nos. 2-3, 5-6, 8, 12-14 are OVERRULED.
The Court did not consider 49ers Stadium’s evidence submitted in reply.
49ers Stadium’s request for judicial notice in reply is DENIED.
LANDMARK’S MOTION FOR SUMMARY JUDGMENT, OR, IN THE ALTERNATIVE, FOR SUMMARY ADJUDICATION
Landmark moves for summary judgment on the grounds that the complaint lacks merit as to it, and in the alternative, moves for summary adjudication as to each cause of action on the grounds that: the first cause of action for negligence fails as a matter of law because Plaintiffs cannot establish that Landmark has a duty to protect Decedent from unforeseeable injury, Landmark breached any duty to exercise ordinary care for the safety of Levi’s Stadium patrons, and Landmark was the proximate cause of Decedent’s injuries and death; and, the second cause of action fails as a matter of law because Landmark did not own, lease, occupy or control Levi’s Stadium.
In support of its motion, Landmark demonstrates that Gonzales and his friends returned to their vehicle after watching the game and were packing up their car and talking when Decedent kicked a bottle that hit Gonzales’ vehicle. Gonzales turned and saw Decedent with his hands up, directly in the air as if he had just scored a field goal, walking towards him. Gonzales claimed that he thought he was being attacked so he punched Decedent who then fell to the ground. Decedent immediately got back up and Gonzales punched him again. The incident took only seconds. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, nos. 19-20.) The incident was reported to Levi’s Stadium Code of Conduct officer Monica Marie Esquivel and an incident report was created in the Levi’s Stadium 24/7 security system at 4:58:35 PM. Emergency medical services were dispatched at 4:59:02 PM and were on scene at 5:00:29 PM. After administering on-scene treatment, EMS transported Decedent to Valley Medical Center at 5:09:05 PM. Decedent was admitted for emergency treatment by 5:23:28 PM. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no. 21.) Gonzales and his friends never interacted with Decedent until the incident. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no. 18.) There were 923 security personnel at Levi’s Stadium on October 7, 2018; with an in-house attendance at the game of 53,582, there was at least one security person for every 58 fans in attendance. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no. 3.) The following on-duty law enforcement officers were present at Levi’s Stadium on October 7, 2018: 123 uniformed on-duty Santa Clara Police Department officers, including multiple bike patrol units or “rovers” making regular sweeps through the Stadium parking lots, 29 uniformed, on–duty CHP officers and 33 CHP Traffic Control staff, 15 49ers Temporary Holding Facility and Command staff, 27 uniformed, on-duty Santa Clara County Sheriff’s deputies and 9 uniformed, on–duty San Francisco County Sheriff’s deputies. Some of these on-duty law enforcement officers patrolled the stadium parking lots with bicycle units and mobile units in marked police vehicles. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no.4.) The number of police personnel deployed at Levi’s Stadium for an event is dependent on the size and type of the event. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no. 5.) The Public Safety Operations Plan provides for a “Command Center” to be located in Levi’s Stadium to be the focal point for the exchange of intelligence information between entities assigned to the Stadium Event. It has video screens monitoring the stadium seating levels, the parking lots and various concourses. The video tapes made on the video cameras are maintained by 49ers Stadium in the regular course of business and are kept in a secure location accessible only to authorized personnel. The Command Center is manned by Santa Clara Police Department personnel, Fire Department personnel, traffic control operator and other public safety personnel. If Police, Fire or EMS is required in the parking lot, Command dispatches the appropriate entity to respond to the situation. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no. 6.) Landmark provides crowd management, guest services, traffic and parking control and 24-hour security services throughout the United States, including services at major professional sporting events. Landmark has been vetted by and met the criteria set forth by the Department of Homeland Security and received the Designated Status under the SAFETY Act. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no. 7.) Pursuant to its contract with 49ers Stadium, Landmark’s provision of services is subject to the reasonable prior approval of 49ers Stadium, including staffing and the manner of Landmark’s performance. For each event at Levi’s Stadium, Landmark is required to provide the number of personnel that 49ers Stadium requests for each category of personnel provided by Landmark. Landmark is not the party responsible for determining the number of Landmark staff needed at each event; it only provides the number of staff it is instructed to provide by 49ers Stadium as 49ers Stadium has the sole and final discretion to determine appropriate staffing numbers and location of staff for each role at each event. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no. 8.) The categories of personnel provided by Landmark include Event Security, Parking Security with Off Duty Law Enforcement Officers, as well as parking lot directional personnel, ticket takers, ushers, supervisors, and other categories unrelated to the instant action. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no.9.) All security personnel provided by Landmark for the 49ers games are certified by the California Bureau of Security and Investigative Services, following the completion of State-mandated security training. In addition, all personnel are certified in numerous subjects, including, but not limited to: Use of Force/Powers Arrest, NFL Best Practices, 49ers Services Training, relevant security measures under Techniques for Effective Alcohol Management (TEAM), search techniques, access control, terrorism awareness and techniques and Verbal De-Escalation/Conflict Management. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no. 10.) Landmark provides Event Security personnel inside Levi’s Stadium before, during and after all 49ers games. The Agreement sets forth the Event Security Staff’s duties as follows: “to assist the facility in providing a safe and enjoyable environment by implementing the policies and procedures of the facility. They are responsible for access control, assisting guests and answering questions, enforcing venue rules, responding to event staff and guest issues, and in cases of emergency, communicating with law enforcement, emergency services and the public in a polite and courteous manner. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no. 11.) Pursuant to the agreement, Landmark provides Off Duty Peace Officers inside the stadium and in the parking lots of the stadium. Off Duty Officers are off-duty or retired peace officers with Peace Officers Standards Training, whose duties under the Agreement include intervening and resolving any security situation within the Stadium, including conflicts and crowd control. Landmark’s Off Duty Law Enforcement Officers are not in a police uniform. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no. 12.) The Agreement also proscribes that the Parking Security staff provided by landmark will assist in providing a safe and enjoyable environment for the tenants and guests by implementing the policies and procedures of the facilities parking lots, and are responsible for access control, assisting guests and answering questions, enforcing venue parking rules, responding to event staff and guest issues and cases of emergency and communicating with law enforcement, emergency services and the public in a polite and courteous manner. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no. 13.) Parking Security Staff provided by Landmark are not armed and their responsibilities do not involve predicting and/or preventing spontaneous assaults committed by fans. Landmark Security Personnel are trained and instructed that if a serious offense, such as a robbery, burglary, or assault has been committed, that they are to call the Command Center immediately, and then intervene as appropriate to deal with the situation until the police arrives. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no. 14.) On October 7, 2018, Landmark had a total of 528 security personnel working the game pursuant to the request of 49ers Stadium for this particular football game, including 64 off-duty peace officers. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no. 15.) There were 30 Landmark security peronnel roaming the stadium parking lot where the subject incident occurred after the game, including 6 off-duty peace officers on bikes working for Landmark and 24 Landmark security personnel. There were also Landmark directional personnel helping with traffic, as well as the above-mentioned on-duty police officers provided by the City of Santa Clara. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no. 16.) The 24 security personnel who were not off-duty peace officers wore yellow Landmark polo shirts and high visibility vests. The 6 off-duty peace officers wore Landmark grey polo shirts with a blue high visibility vest. All of the Landmark Security Personnel assigned to the parking lots carried radios that allowed them to communicate with the Command Center. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no. 17.) In March 2021, Decedent had a severe asthma attack and passed away several days later. His death certificate does not state a cause of death. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no.23.) Plaintiffs’ objections to evidence nos. 1-3 are not in compliance with Rule of Court 3.1354, subd. (b)(1)-(3) and are therefore OVERRULED.
Like 49ers Stadium, Landmark meets its initial burden to demonstrate a lack of causation of Decedent’s injuries and the conduct of Landmark. Landmark also demonstrates that it does not have the requisite control, ownership, leasing, or occupation of Levi’s Stadium such that it could be held liable for premises liability. (See Pls.’ separate statement in opposition to Landmark’s motion for summary judgment, no. 1 (Agreement stating that Landmark’s use of the property that it is permitted to access, use and occupy for purposes other than operations to be conducted under the Agreement is prohibited without prior written approval of Stadium Manager); see also Balard v. Bassman Event Sec. (1989) 210 Cal.App.3d 243, 247 (stating that “[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… [g]enerally a person does not have a duty to control another's conduct or to warn those who may be endangered by such conduct… [a] defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control… [w]here the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper”).) Since no Landmark personnel were in the immediate vicinity of the incident at the time of the incident, the evidence regarding the timing of the incident presented by Landmark indicates that it was unable to prevent the incident from occurring provoked by Decedent’s kicking of the bottle at Gonzales and hitting his vehicle. Landmark meets its initial burden as to both causes of action and the burden shifts to Plaintiffs to demonstrate the existence of a triable issue of material fact.
Plaintiffs, however, again make the same arguments that it made in opposition to 49ers Stadium’s motion. Plaintiffs again largely rely on the expert declaration of Fried. However, Landmark’s objections 1 and 2 to the Fried declaration are SUSTAINED. Without the Fried declaration, Plaintiffs do not have any evidence that suggests that it was more probable than not that, but for Landmark’s negligence, the assault would not have occurred. (See Saezler, supra, 25 Cal.4th at p.775 (stating that a negligence action “for injuries resulting from the criminal assault of a third person must be supported by evidence establishing that it was more probable than not that, but for the landlord's negligence, the assault would not have occurred… [w]here, as here, there is evidence that the assault could have occurred even in the absence of the landlord'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, or on an expert's opinion based on inferences, speculation and conjecture… [i]n this case, where there is no factual basis for the expert's opinion or for [the plaintiff's] general assertion of causation, the conclusion is unavoidable that summary judgment was properly granted… [a] mere possibility of such causation is not enough”).) Here, there is evidence that the assault could and would have occurred even in the absence of any defendant’s negligence: Decedent kicked the bottle, hitting Gonzales’ car, moved towards Gonzales, and after being hit, continued to move towards Gonzales—all within the seconds as indicated on the video screenshots and video. Plaintiffs fail to show that Landmark’s act or omission was a “substantial factor” in bringing about Decedent’s injury, or that there was some substantial link or nexus between Landmark’s omission and Decedent’s injury. (See Saezler, supra, 25 Cal.4th at p.778.) Again, while it is possible that Landmark could dramatically increase its security presence such that it might be able to prevent an assault after an attendee kicks a bottle towards another attendee that occurred within seconds, this is the argument made in Nola M., discussed in Saezler: “as Nola M. asks, ‘where do we draw the line? How many guards are enough? Ten? Twenty? Two hundred?’” (Saezler, supra, 25 Cal.4th at p.777.) Plaintiffs do not present evidence indicating a number; however, it could be over a hundredfold greater. “Aside from the inordinate expense of providing such security for [a group of 53,582], the argument is entirely speculative, as assaults and other crimes can occur despite the maintenance of the highest level of security.” (Id.) Here, Plaintiffs fail to demonstrate a triable issue of material fact as to whether Landmark’s conduct was a substantial factor in causing Decedent’s injuries; accordingly, Landmark’s motion for summary judgment is also GRANTED.
Landmark’s evidence submitted in reply was not considered.
The Court will prepare the order.
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Case Name: Carla Gardner et al vs BMW OF NORTH AMERICA, LLC et al
Case no.: 21CV381377
Background
On March 26, 2021, plaintiffs, the Estate of Raul Braganza Rivero, Carla Gardner, Angelica Rivero, Ana Rivero, and Raphael Rivero (“plaintiffs”), filed complaint against defendants, BMW of North America, LLC and San Jose Motorsport, Inc. dba San Jose BMW Motorcycles (“defendants”), alleging causes of action for negligence, products liability, and wrongful death. The action arises out of a motorcycle accident in Ensenada, Mexico resulting in fatal injuries to Raul Bragamza Rivero (“decedent”).
On November 22, 2021, defendants served plaintiffs with request for production of documents, set one, which sought production of police/accident reports and autopsy report relating to the fatal accident.
On December 21, 2021, plaintiffs served response indicating that plaintiffs were not in possession of any documents responsive to the request for production of documents.
On March 2, 2022, defendants served plaintiffs with request for production of documents, set two, which requested plaintiffs to sign authorization forms for defendants to obtain the police/accident reports and autopsy report in lieu of production of the documents.
On April 18, 2022, plaintiffs served response with objections and did not produce signed authorization forms.
On June 6, 2022, defendants filed the instant motion to compel further responses to request for production of documents, set two.
On August 19, 2022, plaintiffs filed opposition and on August 24, 2022, defendants filed reply.
Summary of contentions
Defendants assert that plaintiffs’ complaint has placed the facts surrounding the accident, the decedent’s injury and death, and the related police/accident and autopsy reports at issue, and the reports are therefore, basic, foundational and relevant to the issues in the litigation. Defendants assert that the request for plaintiffs to sign authorization forms to obtain the reports located in a foreign jurisdiction is a simple step for plaintiffs to retrieve the documents. By inference, defendants assert that the action of signing the authorization forms is in furtherance of the responding parties’ obligation to conduct diligent search and reasonable inquiry to produce all documents in the responding parties’ possession, custody or control as required by the Discovery Act.
In opposition, plaintiffs assert that defendants’ motion is not a motion to compel further responses, but instead a motion to compel the execution of a records authorization, and that there is no authority conferred by statute or decisional law for the court to compel a responding party to sign a records authorization pursuant to a motion to compel.
Analysis
If a responding party does not have the ability to comply with a request for production of documents, the responding party is required to provide a representation pursuant to Code of Civil Procedure section 2031.230 that “inability to comply with the particular demand … shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. The statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.”
If the propounding party contends that the response of the responding party to the request for production of documents is deficient and not code-compliant, a motion to compel further response may be brought pursuant to Code of Civil Procedure section 2031.310.
While it may be a simple matter to sign and return an authorization form, the express provisions of the sections for a response and a motion to compel neither require that the responding party execute an authorization nor confer authority to the court to order a responding party to do so. Nor have defendants cited case law that interprets the discovery statutes in that way.
Additionally, it is not clear from the papers filed in support whether an authorization form is the only means of obtaining the records from the agencies in possession of the documents in Mexico.
That said, plaintiffs served a verified response to request for production of documents, set one, that plaintiffs do not have possession, custody or control of any the requested reports. Plaintiffs further submit the declaration of counsel attesting to efforts to obtain the requested reports from the Mexican government, that plaintiffs have produced everything obtained, and that plaintiffs will produce any additional records later obtained.
Therefore, if plaintiffs’ response and statements are not truthful, it would preclude plaintiffs’ introduction into evidence at trial the reports, information obtained from reports, plaintiffs’ experts’ reports or testimony that considered the reports or information from the reports.
Objections and further response
As to the objections, and request for further response, the court makes the following tentative ruling:
Request for Production No. 3:
The objections of attorney work product doctrine, attorney- client privilege and plaintiffs’ right to privacy are OVERRULED.
While there is a legally protected privacy interest in a person’s medical records (autopsy report), the privacy interest is not absolute where, as here, plaintiffs have placed the facts and circumstances surrounding the decedent’s death from the accident into issue in the lawsuit, the scope of the invasion of the privacy interest is specific and not overbroad, the invasion of the privacy interest is outweighed by the direct relevance and probative value of the evidence to the issues in the litigation, and the information cannot be obtained by less intrusive means.
The objections of premature disclosure of an expert opinion, that the request is vague, ambiguous, overbroad, burdensome, or oppressive are OVERRULED.
The response following the overruled objections shall stand and no further response is required.
Request for Production No. 4:
The objections of attorney work product doctrine, attorney- client privilege and plaintiffs’ right to privacy are OVERRULED.
While there is a legally protected privacy interest in a person’s medical records (autopsy report), the privacy interest is not absolute where, as here, plaintiffs have placed the facts and circumstances surrounding the decedent’s death from the accident into issue in the lawsuit, the scope of the invasion of the privacy interest is specific and not overbroad, the invasion of the privacy interest is outweighed by the direct relevance and probative value of the evidence to the issues in the litigation, and the information cannot be obtained by less intrusive means.
The objections of premature disclosure of an expert opinion, that the request is vague, ambiguous, overbroad, burdensome, or oppressive are OVERRULED.
The response following the overruled objections shall stand and no further response is required.
Sanctions
The court declines to impose sanctions against defendants or plaintiffs as each side has substantial justification in bringing and opposing the motion.
Defendants shall prepare the order.
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Case Name: D. Mollins vs EQR-Sombra 2008 Limited Partnership, et al
Case no.: 2014-1-CV-269592
Background
August 18, 2014, plaintiff Dana Mollings (“plaintiff”) filed complaint against defendants EQR-SOMBRA 2008 Limited Partnership (“EQR”), Equity Residential Management, LLC (“Equity”), Equity Residential Services II, LLC, Equity Residential Services, LLC, and the City of Sunnyvale for alleged personal injuries from a trip and fall accident. Trial is set for September 12, 2022.
On May 18, 2022, plaintiff served form interrogatories Set 4, requests for admissions set 4, and special interrogatories set 5 on defendant EQR and form interrogatories set 4, requests for admission set 4 and special interrogatories set 6 on defendant Equity. Responses to the discovery were due from each defendant on June 22, 2022. Responses were not served on the due date.
On July 14, 2022, plaintiff filed the instant motion to compel responses to the discovery from defendants EQR and Equity (hereafter “defendants”).
On July 19, 2022, defendants each served responses to the discovery, and thereafter served verifications dated August 15, 2022.
On August 19, 2022, defendants filed opposition to the instant motion and on August 25, 2022, plaintiff filed reply.
Summary of contentions
Plaintiff acknowledges that after filing the instant motion and before date of hearing, defendants each served responses to the discovery. Plaintiff objects to the sufficiency of the verifications to the responses, but not to the sufficiency of the responses themselves, other than that they were not timely served.
In opposition, defendants assert that defendants’ serving responses to the discovery prior to hearing renders the motion moot. Defendants also assert that motion is untimely and procedurally defective.
Analysis
The failure of defendants to serve responses by the deadline of June 22, 2022 waives all
objections to the form interrogatories, special interrogatories and requests for admission.
The defendants’ service of substantially compliant responses to request for admissions before the hearing on the motion, defeats plaintiff’s motion to have the requests for admission deemed admitted. Code of Civil Procedure section 20.33.280, subdivision (c).
The court has reviewed the responses to requests for admissions attached to the opposition of defendants and finds that they are in substantial compliance.
Sanctions
Plaintiff timely filed the instant motion to compel, and the court’s calendar was not available for setting of hearing 15 days prior to trial. Defendants’ opposition does not evidence any prejudice to defendants from the setting of the motion. Under these circumstances, the court will hear the motion to compel.
While the service of substantially compliant responses prior to hearing on a motion to compel defeats a motion to have requests for admission deemed admitted, and moots the necessity for an order to compel responses, it does not moot a request for sanctions.
California Rules of Court, Rule 3.1348 provides in pertinent part that “(T)he court may award sanctions under the Discovery Act in favor of party who files a motion to compel discovery, even though no opposition to the motion was filed … or the requested discovery was provided to the moving party after the motion was filed.”
Here, plaintiff was required to file the motion to compel to obtain compliance with discovery propounded on defendants. Plaintiff is entitled to an award of monetary sanctions.
Defendants assert that the amount of sanctions requested is excessive and the declaration of counsel submitted in support is vague.
The declaration of plaintiff’s attorney sets forth the hourly rate of counsel ($350) and that six hours of services were rendered to research and draft the motion.
The court finds that the hourly rate of plaintiff’s attorney is within rates of attorneys in Santa Clara County with comparable experience and skill in discovery motions. In reviewing the moving papers, six hours is high; however, the court has considered that fees are not requested for review of opposition and drafting of reply.
The court has also considered that the discovery was propounded very late in the case, and that of the possible outcomes and consequences from propounding discovery so close to trial, defendants served responses shortly after the motion was filed and well before the hearing.
Defendants shall pay to plaintiff, attorneys’ fees of $1,000 as sanctions, payable on or before 20 days from date of hearing. Sanctions in excess of $1,000 would be unjust under all the circumstances.
The evidence is insufficient to show that defendants’ failure to timely serve responses is pursuant to advice of counsel, and sanctions will not be imposed on defendants’ counsel.
Disposition
The motion to have requests for admission deemed admitted and to compel service of responses to discovery is DENIED.
The court finds that all objections in each defendant’s responses to discovery served July 19, 2022 are waived.
Defendants shall pay to plaintiff, attorneys’ fees of $1,000 as sanctions, payable on or before 20 days from date of hearing.
Plaintiff shall prepare the order.
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[1] The court declines to consider the supplemental request for judicial notice as it constitutes new evidence submitted for the first time with the reply papers. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 [the general rule of motion practice is that new evidence is not permitted with reply papers]; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [improper to introduce new evidence in reply].)
[2] The Notice of Demurrer is brought by defendants the City and Cayori. But, the memorandum in support of the demurrer provides that the Department of Public Safety is not a separate entity, but a department of the City. (See Memo of P’s & A’s at p. 1, fn. 1.) Thus, the Department of Public Safety is also included here as a defendant for purposes of this motion. (Ibid.)
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