COFFEE HOUSE v. SUPERIOR COURT OF LOS ANGELES COUNTY No. B234545.
COFFEE HOUSE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; BIHN THAI TRAN et al., Real Parties in Interest.
Court of Appeals of California, Second District, Division Five.
Filed January 12, 2012.
Early, Maslach & Van Dueck,
James G. Randall, John C. Notti, Paul A. Carron; Greines, Martin, Stein & Richland, Robert A. Olson and Alana H. Rotter for Petitioner.
Law Offices of Robert H. London,
Robert H. London and Robert Brock for Real Parties in Interest.
No appearance for Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
On February 5, 2009, two unidentified men entered the premises of petitioner Coffee House and fatally shot a patron named Hung. Real parties in interest Bihn Thai Tran, Dan Cao, and Frank Luong, patrons of Coffee House at that time, were also shot and injured. Two months before the shooting, a man identified as Viet had entered Coffee House, verbally accosted Hung for "bad-mouthing" him, and displayed a firearm in a threatening manner.
Real parties' first amended complaint against Coffee House alleged two causes of action. In the first cause of action for premises liability, real parties alleged there was a special relationship between them and Coffee House as business invitees, which created a duty to maintain the premises in a safe condition. The second cause of action, for negligence, alleged Coffee House had a duty to exercise reasonable care to prevent injuries to real parties. Both causes of action alleged that Coffee House breached its duties by failing to hire one or more security guards, call 911 to report the prior incident, and warn real parties of the risks resulting from the prior incident.
Coffee House filed a motion for summary judgment or summary adjudication, arguing it had no duty to real parties, it did not breach a duty to them, and real parties failed to establish the element of causation. Respondent court denied the motion for summary judgment. Coffee House filed a petition for writ of mandate in this court. We issued an alternative writ of mandate, directing respondent court to vacate its ruling and enter a new order granting the motion for summary judgment, or show cause why a peremptory writ should not issue. Respondent court elected not to comply with the alternative writ. We grant the relief prayed for in the petition, as real parties cannot establish the essential element of causation in both causes of action. (Saelzler v. Advanced Group 400 (2001)
The Motion for Summary Judgment
A. Coffee House's Moving Papers
Coffee House argued it owed no duty of care to real parties, it did not breach a duty of care, the shooting of real parties was not foreseeable, and breach of any duty was not a substantial factor causing real parties' injuries. Coffee House relied on the following undisputed facts.
Two men, wearing bandanas and dark clothing, committed the February 5 shooting. The event happened quickly, and the assailants have not been identified. Real parties were shot and injured; Hung was killed. Luong was present and witnessed the prior incident at Coffee House. A man entered Coffee House and yelled that Hung had "bad-mouthed" him. The man pulled out a gun and slammed it on a table, breaking the glass top. Luong did not hear the man say anything about coming back.
B. Real Parties' Opposition
Real parties identified the person who had confronted Hung in the earlier incident as Viet. Viet and Hung were gang members. The first incident was not reported to the police. Although Luong was present at the first incident, Tran and Cao were not and had not heard about the confrontation. Coffee House took no steps to contact the police, warn patrons, exclude the involved parties of the first incident from the premises, hire a doorman or security guard, or take other measures to protect real parties.
Coffee House owed a duty to its patrons based on its special relationship with business invitees. Foreseeability of future crimes can be established by prior similar incidents. Coffee House owed a duty to hire a security guard or undertake a similar burdensome measure in order to protect its patrons from violent criminal attack. Coffee House's breach of duty was a substantial factor in causing real parties' injuries. Tran and Cao would not have gone to Coffee House had they been warned of the prior incident. Luong knew of the prior incident, as he was present at the time it occurred, but he had seen Viet and Hung in Coffee House after that and assumed the matter had been settled.
Real parties relied on two expert declarations. Kimberly Ponce, an investigator with the Los Angeles County Sheriff's Major Crimes Bureau, had 16 years' experience as a peace officer and extensive investigative experience. She reviewed the records and reports in this case and concluded the owners/management of Coffee House had knowledge of a dangerous situation and had a duty to act to protect its patrons. Coffee House acted unreasonably, allowing its fear of these gang members to affect their duty to act reasonably, resulting in injuries to real parties.
Ban Nguyen, a background investigator for the sheriff's department, filed a declaration establishing his training and 15 years experience in law enforcement. Based on his review of the case records, he opined that Coffee House should have warned patrons of an armed threat, taken steps to exclude the offender from the premises, maintained an operating sound and video monitoring system, created signage advising patrons of monitoring, trained its employees on what to do in an emergency, consulted with a security expert, placed panic alarms throughout the location, employed a doorman to assess individuals, and hired or requested the landlord to provide a private armed or unarmed security service. Coffee House failed to reasonably minimize the risk of further criminal activities, making the February 5 shooting more likely to occur.
C. Ruling of Respondent Court
Respondent court denied the motion for summary judgment. Coffee House, "under the allegations of this case," owed a duty to protect real parties from criminal acts of third parties. Real parties' proposed measures are neither burdensome financially or socially, and it is reasonably probable that if these measures had been taken the incident would not have occurred. There are triable issues as to whether Coffee House conduct was a substantial cause of the injuries to real parties.
Standard of Review
Coffee House, as a defendant moving for summary judgment, was entitled to summary judgment if it established a complete defense to real parties' causes of action, or showed that one or more elements of the cause of action could not be established. (Aguilar v. Atlantic Richfield Co. (2001)
In order to prevail, real parties must establish that Coffee House owed a duty of care, that duty was breached, and the breach was a proximate or legal cause of their injuries. (Saelzler, supra, 25 Cal.4th at p. 767, citing Sharon P. v. Arman, Ltd. (1999)
To demonstrate actual or legal causation, a plaintiff must show that the defendant's act was a substantial factor in bringing about the injury, meaning the "plaintiff must show some substantial link or nexus between omission and injury." (Saelzler, supra, 25 Cal.4th at p. 778.) A significant increase in security will not prevent all crime or a particular crime. (Id. at p. 779; Nola M., supra, 16 Cal.App.4th at pp. 436-437.) "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." (Saelzler, supra, at p. 780.)
In Noble v. Los Angeles Dodgers, Inc. (1985)
Respondent court erred in denying the motion for summary judgment. Real parties failed to present any nonspeculative evidence on the issue of causation. The attackers in the shooting have not been identified and there is no evidence of gang affiliation. The prior incident occurred two months before real parties were injured. There is no evidence the two incidents were related. Following the first incident, Viet was seen at Coffee House in the presence of Hung, with no apparent difficulties.
There is no competent evidence that the absence of the security measures suggested by real parties' expert Nguyen played any role in the attack. Luong described a sudden attack by two men, and it is entirely speculative that the assault would not "occur despite the maintenance of the highest level of security." (Saelzler, supra, 25 Cal.4th at p. 777.) Case law does not make a landowner an insurer against unexpected violent attacks. (Castaneda v. Olsher (2007)
Because we resolve the petition on the issue of causation, we need not discuss Coffee House's arguments that summary judgment should have been granted on the issues of duty and breach of duty.
Let a peremptory writ of mandate issue directing respondent superior court to vacate its order denying Coffee House's motion for summary judgment and enter a new order granting summary judgment. Costs are awarded to Coffee House.
ARMSTRONG, Acting P. J. and KUMAR, J.,
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