Avila v. Jado Properties 9/30/03 CA2/8

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: B153932

Case Date: 10/01/2003

Preview:Filed 9/30/03

CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT GUILLERMO AVILA et al., Plaintiffs and Appellants, v. JADO PROPERTIES, INC., Defendant and Respondent. B153932 (Los Angeles County Super. Ct. No. BC228365)

Appeal from a judgment of the Superior Court of Los Angeles County. Emilie H. Elias, Judge. Affirmed in part and reversed in part. Law Offices of George B. Pacheco and George B. Pacheco for Plaintiff and Appellant Guillermo Avila. Moreno, Becerra, Guerrero & Casillas and Danilo Becerra for Plaintiff and Appellant Jeremiah Del Real. Horvitz & Levy, Peter Abrahams and Orly Degani; Schaffer, Lax, McNaughton & Chen, Kevin J. McNaughton and Jill A. Franklin for Defendant and Respondent

In this premises liability and negligence case, we hold that the trial court erred in granting summary judgment in favor of a landowner who owed the Appellants a contractual duty to provide security in a nonnegligent manner. The record reveals triable issues of material fact regarding (1) the scope of the landowner's contractual duty; (2) whether the landowner breached its contractual duty; and (3) whether there is a substantial link between the alleged breaches and the injuries Appellants suffered when they were shot in front of the landowner's property. The award of summary judgment included an adjudication of Appellants' cause of action for fraud. Because Appellants' abandon this cause of action on appeal, we direct the trial court to enter an order awarding summary adjudication of that cause of action. FACTUAL BACKGROUND Jado Properties Inc. does business as Steven's Steak and Seafood House (Steven's). Steven's is a restaurant located in the City of Commerce. The main entrance to the restaurant is on Steven's Place. In addition to the main entrance, two doors open directly from banquet rooms in Steven's onto Eastern Avenue. "[O]n occasion some of the patrons [of Steven's] will come out [of the restaurant] and catch a smoke or sit . . . and . . . chat . . . on the sidewalk." The owner of Steven's, Virginia Filipan, was aware that people would smoke outside the building on the Eastern Avenue side. Steven's also provided a patio where patrons could go to smoke. Leticia and Alfredo Macias and Connie and Rafael Macias decided to host a "double quinceanera" to celebrate their daughters' fifteenth birthdays. The Macias hosted the event in a banquet room at Steven's. When planning the event, Leticia was told "security would be provided for their event by Steven's." Leticia did not ask any specific questions regarding the kind of security that would be provided. Alfredo Macias was told "don't worry, we have experience, we have so many parties right here so, you know, everything is going to take care [sic]." Alfredo Macias understood that statement to mean that he did not have to bring his "own policeman to the event." Donald Caruthers, a Steven's employee, explained that when an event is booked at Steven's, if an

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inquiry is made regarding security, he "would just say we have in-house security and we never had any problems here." The Macias event took place April 17, 1999. Like other nights, Robert Hibbing, a former deputy sheriff, patrolled the outside of Steven's in a golf cart. Hibbing's general routine included driving his golf cart in an alley so that he could see the sidewalk in front of the banquet room where the Macias' event was held. Hibbing, however, did not recall whether he actually followed this routine on April 17, 1999. Hibbing testified that Steven's had a security team but the record does not reveal the members of this team. Hibbing was aware that patrons would sometimes exit from the banquet rooms onto Eastern Avenue and chat outside. Guillermo Avila and Jeremiah Del Real (Appellants) attended the Macias' event. Just before midnight, several people (estimated as between 20 and 40), including Avila, congregated on the sidewalk outside the banquet room. While he was standing on the sidewalk, Avila noticed a vehicle drive up, and later learned that the driver and four passengers were members of the Stoner 13 gang. Someone inside the vehicle yelled at girls who were also standing on the sidewalk outside the banquet room. One of the people inside the vehicle asked Avila where he was from, a greeting Avila understood to be gang related. In an effort to show that he was not part of any gang, Avila responded that he was from no where. The vehicle then made a u-turn, and stopped in front of Steven's. Then people "jumped out" of the car. Avila offered the following varying descriptions of what happened next: (1) The gang members hit Avila's cousin and Avila went "into the middle of the street" because "that is [his] family"; (2) Avila was dragged from the sidewalk to the street by the gang members; and (3) "Avila had attempted to prevent the gang members from harassing the young teenage women who were at the entrance to the banquet area of Steven's Steakhouse." The person fighting with Avila pulled out a gun and shot Avila. In his deposition, Del Real stated that he stepped outside, and within 30 seconds, shots were fired. Del Real also explained, "I went outside. There was a scuffle and 3

someone pulled me in the street and shot me." Del Real further stated "as soon as I stepped out, there was someone running at me already." There were several different estimates of the time that elapsed from when the vehicle first appeared in front of Steven's to when the shootings took place. The longest estimate (which we use because of the procedural posture of this case) was found in Avila's declaration, which indicated that the gang members spoke to the girls for 5-10 minutes, then spent 5-10 minutes yelling at Avila and making a u-turn, then spent 2-3 minutes getting out of their vehicle and arguing with another person. At some point after the gang members arrived and before the shootings, an unknown person informed Hibbing, who was on the other side of the restaurant, that people were fighting outside the restaurant. Hibbing "radioed it in," but it is not clear who, if anyone, received this dispach. Hibbing went inside the restaurant to get assistance from deputy sheriff Oscar Barragan, an on-duty sheriff who happened to be inside Steven's. After Hibbing told Barragan of the fight, Barragan ran outside with Hibbing. Barragan saw two sets of one-on-one fistfights on Eastern Avenue. "Barragan then moved into the situation slowly in order to make his presence known and safely assess the situation." Barragan was not able to assess the situation prior to the shootings and according to him, assessing the situation was a prerequisite for calling for assistance. After the gun shots were fired, Barragan took cover and called for back-up. Deputy Sheriff Scott Schulze received Barragan's request for assistance, located the vehicle based on Barragan's description, and followed the vehicle. When Schulze turned on his lights, the driver increased the speed of the vehicle. Eventually the vehicle crashed into an apartment building. One Appellant ended up in the middle of the street, near a center divider and the other was three or four feet from the curb. As a result of the shootings, Del Real was required to have his leg amputated and Avila suffered nerve damage to his leg. PROCEDURAL BACKGROUND Appellants filed separate complaints, each alleging causes of action for premises liability and negligence, both based on allegations of lack of security or lack of adequate 4

security. Appellants also each alleged a cause of action for fraud. Steven's, Rafael Macias, Connie Macias, Jose Macias, and Leticia Macias were named as defendants. The Macias cross-complained against Steven's seeking indemnity.
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Steven's moved for summary judgment or in the alternative for summary adjudication, arguing (1) that Steven's had no duty "applicable" to Appellants and that (2) Appellants could not demonstrate causation as a matter of law. In opposition to summary judgment, Appellants argued triable issues of material fact remained, including the following: (1) "Defendant Steven's had specifically promised that it would provide security for the event and whether or not it failed to do so"; (2) "Defendants Steven's Steakhouse assumed the duty to patrol and monitor the area immediately adjacent the entrance and exit of the banquet facilities where the incident occurred"; and (3) "[t]he security personnel that was provided by Steven's Steakhouse was unprepared for the quinceanera that was held on April 17, 1999 and their incompetence prevented them from making a timely intervention . . . ." Appellants presented the declaration of Don MacNeil, a former police officer, security consultant, and university instructor. MacNeil opined that, based on his location, it appeared that Hibbing's primary responsibility was to secure the cars, not to provide security for the Macias's event. MacNeil also opined that the security should have been highly visible to serve as a deterrent and that Steven's should have created "an emergency plan that insured that when an emergency situation unfolded that there was a coordinated effort to secure the safety of the patrons." MacNeil further opined that it was necessary to constantly monitor "any outside area of congregation of people . . . ." According to MacNeil, "[i]f Mr. Hibbing were a competent security officer, he would have been properly prepared for the evening . . . [would] provide for regular monitoring

Although Appellants filed separate complaints, they raised the same causes of action in their complaints, the same issues in their opposition to summary judgment, and in this appeal. Therefore, we need not consider their cases separately. 5

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of the young people that were certain to congregate outside and would have been immediately able to de-escalate a situation that ultimately took at least 13 minute to unfold and thirteen minute episode that lead to the tragic shooting of Jeremiah Del Real and Guillermo Avila." Specifically, MacNeil stated that competent security could have prevented the shooting by intervening when the "harassment of the young female party attendees" first started, and could have alerted others including requesting assistance from a local police station. MacNeil also opined that a security guard could have "alerted the parents inside the banquet room of the need to immediately bring their children back inside the banquet room" and ushered the people back inside. MacNeil concluded that "it is more probable than not, that competent security personnel would have prevented the attack upon Steven's patrons [Avila and Del Real] at the Macias Quinceanera from occurring and even if an incident had occurred, competent security would have intervened before any injuries occurred to Mr. Del Real and Mr. Avila." The trial court granted summary judgment. The court found Steven's had no duty because the actions taken by third-parties occurred on the public sidewalk and public street. The court further found that the shootings were not foreseeable. In addition, the court found no evidence of causation. Finally, the court concluded MacNeil's declaration was based on speculation. Appellants timely appealed. DISCUSSION A defendant meets his or her burden upon a motion for summary judgment or summary adjudication if that party has proved "one or more elements of the cause of action cannot be established . . . . ." (Code Civ. Proc.,

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