Morris v. De La Torre 9/3/03 CA4/1

SUPREME COURT CASES

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State: California

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

Docket No: D040278A

Case Date: 09/12/2003

Preview:Filed 9/3/03; reposted 9/12/03 to provide correct version

CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA CHARLES E. MORRIS, IV, Plaintiff and Appellant, v. SILVINO DE LA TORRE, Defendant and Respondent. APPEAL from a judgment of the Superior Court of San Diego County, Luis R. Vargas, Judge. Reversed. (Super. Ct. No. GIS004607) D040278

Estey & Bomberger and Stephen J. Estey, for Plaintiff and Appellant. Clements & Knock and Thomas V. Clements, Debra A. Stevens, and Michael M. Linley for Defendant and Respondent.

Charles Morris filed a negligence action against Silvino De La Torre, the owner of a taco shop, arising from the criminal conduct of a gang member who seized a knife from the shop's kitchen and used it to stab Morris while Morris was in the parking lot in front of the shop. The trial court granted summary judgment in De La Torre's favor, finding the incident was not sufficiently foreseeable to impose a duty of care. Although we agree with the court's foreseeability analysis, we reverse the judgment because the court failed to distinguish between a business owner's duty to take protective measures to deter future criminal conduct, and the duty to respond to contemporaneous criminal acts occurring on property used by the business. For reasons we shall explain, we hold De La Torre had no duty to take preventive measures such as hiring security guards, issuing warnings, or screening employees. However, because we conclude a special relationship existed between De La Torre and Morris, De La Torre's employees had a duty to take reasonable steps in response to the ongoing criminal conduct. A triable issue of fact exists as to whether De La Torre's employees breached the duty by failing to summon help for Morris. In defining the scope of this duty, we reject Morris's contention that the employees, who were in fear for their own safety, were required to refrain from complying with the gang member's demands for access to a knife. FACTUAL AND PROCEDURAL SUMMARY Morris filed his complaint against De La Torre and Richard and Ruth Karlson. De La Torre owned Victoria's Taco Shop, a 24-hour taco shop located in a strip mall owned 2

by the Karlsons.1 On July 31, 2000, Richard Cuevas, a member of the Nestor street gang, punched Morris and started a fistfight in the parking lot in front of the taco shop. Cuevas then entered the taco shop, grabbed a knife from the taco shop's kitchen, and used the knife to stab Morris while they were in the parking lot. Cuevas also pursued and again stabbed Morris across the street from the taco shop after Morris attempted to flee. Morris alleged De La Torre was negligent because (1) he was aware of repeated instances of violent conduct at the business and failed to take appropriate security precautions which could have prevented the attack; and (2) his employees, who were aware of the assault while it was occurring, responded to the violence by providing the assailant with a knife and failing to call the police. Morris also claimed De La Torre had a duty not to hire employees who did not have legal work status. De La Torre moved for summary judgment, arguing that he had no duty to protect Morris against the criminal conduct of a third party, there was no breach of duty, and any breach was not the proximate cause of Morris's injuries. Alternatively, De La Torre moved for summary adjudication of issues, requesting a ruling that his employees had no duty to call 911 and that their legal status could not be considered as a factor in defining duty. The parties' factual presentation revealed the following. At about 1:00 a.m. on July 31, 2000, Morris and four friends drove to the taco shop for food and parked in the parking lot in front of the business. The front of the taco shop is made out of glass and

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The Karlsons are not parties on appeal. 3

there is a clear view from the shop to the parking lot. A couple of Morris's friends went into the taco shop to get food, while Morris and his other two friends stayed outside. Morris, who was a regular customer, did not enter, nor did he intend to enter, the taco shop that evening. Because of a stomachache, he did want any food. At about the same time, Cuevas and Sal De La Vega, whom Morris and his friends did not know, also pulled into the parking lot. Cuevas was shirtless and had the word "Nestor" tattooed across his stomach. Morris was sitting on the hood of the car when Cuevas confronted him, stating that the taco shop belonged to the Nestor gang and Morris and his friends could not eat there. Morris, who was not in a gang, responded that he lived in the area and was from Imperial Beach. Morris's friends came out of the taco shop and tried to calm Cuevas and De La Vega. A loud argument erupted; then Cuevas hit Morris. A fistfight ensued in the parking lot between Morris and his friends and Cuevas and De La Vega. One of De La Torre's employees stated that the employees did not know the disturbance in the parking lot was a fight because people outside were often loud. However, contrary evidence indicated the employees had told the police they were aware of the fistfight as it was occurring. Cuevas went into the taco shop and yelled "filero," a slang word in Spanish meaning "knife." Cuevas gained access to a large knife by passing through a three- or four-foot high door which separated the customer area from the kitchen area. The door may have had a lock on it, but it was not clear whether the lock was attached or

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functioning.2 According to the police, one of the taco shop employees stated he opened the door for Cuevas.3 The employee indicated he became afraid when Cuevas entered the shop yelling for a knife. Another employee stated he did not say anything to Cuevas because Cuevas looked angry and had the knife in his hands. All of the employees were afraid because they did not want to be victims of a stabbing or beating. Cuevas exited the taco shop, walked towards Morris, stabbed him two times, and then slashed car tires. The stabbing occurred in the parking lot, about 15 to 20 feet away from the front of the taco shop. After Morris was stabbed, everyone scattered. Two of Morris's friends ran to a pay phone at a nearby Jack-in-the Box and called 911. Morris ran from the taco shop but kept falling; he was able to run across the street to an elementary school, where he could not run anymore. Cuevas was behind him with the knife and stabbed him three or four more times. A taco shop employee saw Cuevas bend over a person on the ground in the parking lot and make stabbing motions; he also saw Cuevas chasing after two people. Another employee saw Cuevas running about 20 feet behind a bleeding Morris.

2 One employee told the police the door did not have a lock, and the employee tried to close the swinging door and told Cuevas he could not go into the kitchen area. Another employee stated the door did have a lock but it was usually left unlocked because customers used it to access the bathroom. Owner De La Torre stated the door was always locked and the bathroom was for employee use only; however, at some point he did notice the latch on the door was broken. 3 This fact is disputed. In his deposition testimony, the employee denied that he opened the door, stating that Cuevas pulled on the door to open it.

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The entire incident, from the time the fight broke out until the police arrived, lasted about seven or eight minutes. After Morris's friends called 911, the police arrived in about two to four minutes. The employees told the police they did not call the police because the telephone in the taco shop was not working. One employee stated he did not want to get involved because he was working in the United States illegally. De La Torre stated the telephone was not working on July 31, and he had Pacific Bell fix it the next day. In response to a subpoena issued by Morris to Pacific Bell for repair records, Pacific Bell produced no records indicating a repair was made. Instead, it provided documents which apparently indicate it had no record of any repair work having been done on the telephone during the period in question. Morris had been to the taco shop two to three times a week for over four years, but prior to July 31 he had never gone there past midnight. He had never had any problems there, and was unaware that the shop was in a gang area. He submitted a declaration stating that if he had been warned of the presence of the Nestor gang in the late evening and early morning hours or of the high crime rate at the premises, he would not have gone there at that time. De La Torre claimed he had never heard of any fights or other crime outside or inside the taco shop prior to July 31, and he had never had a problem with gang graffiti. None of the businesses in the shopping center had security guards. Morris presented evidence that the taco shop was in an area frequented by the Nestor gang, that previous fights had occurred there, and that the police had observed the 6

Nestor gang congregate at the taco shop location. A security consultant observed graffiti all over the rear of the taco shop and the shopping center. An individual who lived three houses away from the taco shop stated he regularly went to the taco shop; the Nestor gang members congregated in front of the taco shop and harassed people as they tried to enter it; and he himself had been harassed by them at the taco shop. Another individual declared that on March 4, 2000, at about 1:00 a.m., she witnessed some individuals fighting in the restaurant for an extended period of time, and one of the individuals was badly bleeding. She also had witnessed other fights at the taco shop. The employees did not intervene or call the police during any of the fights. A third individual declared that in the summer of 1999, he was at the taco shop with a group of friends and he observed a group of gang members who were drinking and appeared intoxicated. When he approached the counter to order food, a couple of the gang members challenged him about territory and demanded money, and the other gang members started getting up as if to attack him. He ran to the car and as he and his friends sped away, the gang members hit and kicked the vehicle. It appeared that the taco shop employees knew the gang members and were undisturbed by their conduct. Police records showed that between January 1, 1998, and the July 31, 2000 attack on Morris, police activity (which apparently resulted in charges) at the strip mall included a carjacking and an automobile theft in May 2000, an automobile theft in December 1999, and a burglary in May 1998. Police records also showed telephone calls made to the police between January 1, 1999, and July 31, 2000, included three calls reporting fights or other such altercations on March 22, 2000, at 3:32 p.m., on November 24, 1999, 7

at 12:22 p.m., and on July 10, 1999, at 9:33 a.m. During this same time period there were eleven 911 calls, a robbery call, four burglary calls, an automobile theft call, and a vandalism call. De La Torre's lease agreement with the shopping center owners provides that the tenant pay additional rent for the expenses of the common areas (including the parking areas), based on the tenant's proportionate share of the entire center. De La Torre's share is 20 percent of the expenses, based on the 1394 square feet his business occupies in the 7003 square foot center. The landlord is required to keep the common areas "in a clean and orderly condition, lighted and landscaped" and to repair any damage to the facilities. The tenant has nonexclusive use of the common areas, including the parking areas. Trial Court's Rulings The trial court granted De La Torre's summary judgment motion, ruling that the incident was not sufficiently foreseeable to impose a duty of care. The court sustained several of De La Torre's objections to the evidence submitted by Morris, but also addressed the import of the evidence on its merits notwithstanding the admissibility problems. We shall do likewise.4 The court concluded the evidence of prior incidents offered by Morris did not show incidents similar to the assault on Morris. The court noted that the statistical evidence presented by Morris did not show any attempted murders or aggravated assaults. Further, the court concluded that the evidence that the

4 We need not evaluate the trial court's evidentiary rulings because none of them ultimately impact our holdings on appeal.

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taco shop was a gathering place for gang members and that fistfights had occurred on the premises did not make the type of violent assault that occurred foreseeable. In ruling on Morris's motion for reconsideration, the court found there was a factual issue whether the door leading to the kitchen area was held open by the employee for Cuevas. However, the trial court concluded summary judgment was proper because the nature of the door was such that it would not have prevented Cuevas from entering the kitchen even without the employee's assistance and thus there was no causation. Further, De La Torre did not owe Morris a duty of care arising from their economic relationship because the undisputed facts showed that Morris was not a customer in that he remained outside and had no intention of entering the taco shop. DISCUSSION Summary judgment is proper where there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc.,

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