Filed 3/6/13 Mendoza v. Baca CA2/2

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                     SECOND APPELLATE DISTRICT
                                                  DIVISION TWO

PETRA MENDOZA et al.,                                                   B237292

                   Plaintiffs and Appellants,                           (Los Angeles County
                                                                        Super. Ct. No. KC056160)
         v.

CONSUELO BACA,

                   Defendant and Respondent.




         APPEAL from a judgment of the Superior Court of Los Angeles County. Peter J.
Meeka. Affirmed.


         The Homampour Law Firm, Arash Homampour and Wendi O. Wagner; The Law
Offices of Thomas C. Zaret and Thomas C. Zaret for Plaintiffs and Appellants.


         Lewis Brisbois Bisgaard & Smith, William John Rea, Jr. and Roy G. Weatherup
for Defendant and Respondent.
        Plaintiffs and appellants Petra Mendoza, Christopher Mendoza, and Steven
Mendoza (collectively, plaintiffs) appeal from the summary judgment entered in favor of
defendant and respondent Consuelo Baca (Baca) in this wrongful death action based on
negligence and premises liability. We affirm the judgment.
                                    BACKGROUND
The parties
        Plaintiffs are the wife and children of decedent Bernardo Mendoza (Mendoza),
who was shot and killed at a neighborhood bar and restaurant called “My Place.” Baca
was the owner of My Place at the time Mendoza was killed.
Factual background
        Mendoza and Baca were present at My Place on November 3, 2007, as were other
patrons of the bar. Julio Duenas (Duenas) arrived at My Place at approximately 7:00
p.m. that night.
        At some point during the evening, Duenas and other customers began arguing
about who was responsible for paying musicians who had performed on the premises. As
the men argued, Baca saw Duenas strike another customer. Baca told Duenas to stop or
she would call the police. Duenas then struck Baca, and a customer named Alejandro
Garcia (Garcia) intervened to defend Baca.
        Duenas and Garcia left the premises to take their dispute outside. Baca telephoned
the police, but was unable to speak to a dispatcher until after Duenas had left the
premises. Baca told the dispatcher that the altercation had ended and that Duenas had
left.
        Shortly after Duenas left My Place, he returned. When Baca learned that Duenas
had returned, she locked both the front and back doors to My Place to prevent him from
entering. Minutes later, Duenas broke through the front door, shooting a gun. A bullet
struck Baca in the back. Another bullet struck Mendoza, killing him. Baca telephoned
the police as she lay bleeding behind the bar. Police subsequently arrested Duenas, who
was convicted of murdering Mendoza.


                                             2
Procedural background
       Plaintiffs filed this wrongful death action against Baca, asserting causes of action
for negligence and premises liability. Baca moved for summary judgment on the grounds
that she owed no legal duty to Mendoza to prevent his death because his murder was
unforeseeable, and because her actions and/or omissions were not the legal cause of
Mendoza’s death. In support of her motion, Baca submitted her own declaration in which
she averred that during the 17 years she owned My Place, there had never been a
shooting on the premises. Baca further stated in her declaration that she had never seen
Duenas before the incident and knew nothing about his background, Duenas did not tell
her that he intended to return to My Place or to exact retribution, and she had no reason to
believe that Duenas would return to shoot her and her customers.
       Plaintiffs opposed the summary judgment motion, arguing that Baca failed to meet
her burden of establishing no duty or lack of causation and that triable issues of material
fact existed regarding the issues of duty, breach of duty, and causation. Plaintiffs
disputed the fact that Baca did not know Duenas intended to return to exact retribution.
They offered in opposition the declaration of a customer named Jesus Mendoza, who
stated that Karina Lopez, a waitress working at My Place on the night of the incident,
blurted out a few days after the incident that she had heard Duenas vow to return to My
Place to shoot. Plaintiffs also disputed the fact that Baca knew nothing about Duenas’s
background. They offered in opposition the deposition testimony of responding Los
Angeles County Sheriff’s Deputy Phillip Martinez, who testified that he interviewed the
owner of the SUV Baca had observed outside My Place shortly before the incident. The
owner of the vehicle told Deputy Martinez that Duenas was a member of the 38th Street
gang and that Duenas had the number 38 tattooed on his inner forearm.
       Plaintiffs disputed that the doors to My Place remained locked after Duenas left
the premises initially. They offered evidence that the front entrance to My Place was
secured by two doors -- an outer iron gate and an inner wood door -- and that although
Baca locked both the gate and the wood door after Duenas initially left the premises, she
subsequently unlocked both the gate and the door in order to let a musician out. When

                                             3
Baca did so, she saw an SUV and wrote down its license plate number. She then locked
the wood door only, and Duenas later pushed his way through that door to enter the
premises.
       Plaintiffs offered evidence to establish that Baca was afraid when a group of men,
including Duenas, first entered the bar both because of the size of the group and because
she knew that one of the men owned a ranch at which guns had been fired. Plaintiffs also
offered evidence that Baca had no security to frisk these men and did not know if they
had guns or access to guns, and that Baca had no training in self-defense or in security
measures for a bar, and never had anyone to advise her on security measures. Finally,
plaintiffs offered evidence that Baca was the owner of the El Castillo Night Club from
1995 to 2005, and on one occasion in 1999, a shooting occurred there.
       Both parties filed objections to each other’s evidence. The trial court overruled all
the evidentiary objections. The court granted plaintiffs’ request for judicial notice of the
preliminary hearing transcript in People v. Duenas, the criminal case in which Duenas
was convicted for Mendoza’s murder; and a copy of the respondent’s brief, the transcript
of Baca’s deposition, and the published appellate court decision in Lopez v. Baca (2002)
98 Cal.App.4th 1008 (Lopez), a civil action against Baca by the victim of the 1999
shooting at the El Castillo Night Club. In doing so, the trial court took judicial notice of
the existence of the preliminary hearing transcript in People v. Duenas and the existence
of Baca’s deposition transcript in Lopez, but not the contents of those documents. With
respect to the appellate opinion in Lopez, the trial court took judicial notice of the
existence of the opinion and the result reached, but did not take judicial notice of the
statement of facts for the truth of those matters.
       In ruling on the motion for summary judgment, the trial court concluded that Baca
had met her burden of proving that plaintiffs could not establish the element of duty
because it was not reasonably foreseeable that Duenas would return to My Place to shoot
its patrons. The trial court further concluded that plaintiffs failed to establish any triable
issue of material fact as to the foreseeability of Duenas’s actions and whether Baca


                                               4
owned a duty to protect Mendoza from those actions. Summary judgment was entered in
Baca’s favor, and this appeal followed.
                                       DISCUSSION
I. Standard of review
        Summary judgment is granted when a moving party establishes the right to entry
of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant
moving for summary judgment bears the initial burden of proving that there is no merit to
a cause of action by showing that one or more elements of the cause of action cannot be
established or that there is a complete defense to that cause of action. (Code Civ. Proc.,
§ 437c, subd. (p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.)
Once the defendant has made such a showing, 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 or as to a
defense to the cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826,
849.) If the plaintiff does not make such a showing, summary judgment in favor of the
defendant is appropriate. In order to obtain a summary judgment, “all that the defendant
need do is to show that the plaintiff cannot establish at least one element of the cause of
action . . . . [T]he defendant need not himself conclusively negate any such element
. . . .” (Id. at p. 853.)
        We review the trial court’s grant of summary judgment de novo and decide
independently whether the facts not subject to triable dispute warrant judgment for the
moving party as a matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348;
Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s evidentiary rulings in
connection with a summary judgment motion under the abuse of discretion standard.
(Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.)
II. Duty and foreseeability
        The elements of plaintiffs’ causes of action for negligence are duty, breach of
duty, causation, and damages. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.)
The same foundational elements must be established for a cause of action for premises
liability based on negligence. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)

                                               5
       The key element in this case is duty, the existence of which is a question of law.
(Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.)
disapproved on other grounds in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5.)
“Duty ‘may be imposed by law, be assumed by the defendant, or exist by virtue of a
special relationship.’ [Citation.]” (Melton v. Boustred, supra, 183 Cal.App.4th at pp.
529-530.)
       “[A]s a general matter, there is no duty to act to protect others from the conduct of
third parties. [Citations.]” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235
(Delgado).) However, “[a] defendant may owe an affirmative duty to protect another
from the conduct of third parties if he or she has a ‘special relationship’ with the other
person,” such as the relationship between a bar owner and its patrons or invitees. (Ibid.)
In such a case, the general duty of maintenance “include[s] the duty to take reasonable
steps to secure common areas against foreseeable criminal acts of third parties that are
likely to occur in the absence of such precautionary measures. [Citations.]” (Ann M.,
supra, 6 Cal.4th at p. 674, italics added.)
       Foreseeability is a crucial factor in determining the existence of such a duty. (Ann
M., supra, 6 Cal.4th at p. 676.) “[A] duty to take affirmative action to control the
wrongful acts of a third party will be imposed only where such conduct can be reasonably
anticipated. [Citations.]” (Ibid.) Foreseeability is determined in light of the totality of
the circumstances. (Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th
398, 406 (Sakiyama).)
       With the benefit of hindsight, almost any result is foreseeable. For this reason,
foreseeability alone is not sufficient to create an independent duty of care. (Sakiyama,
supra, 110 Cal.App.4th at p. 407.) The existence of a duty therefore depends not only on
the foreseeability of the risk but also a weighing of policy considerations for and against
the imposition of liability. (Ibid.) “‘Because the consequences of a negligent act must be
limited to avoid an intolerable burden on society [citation], the determination of duty
“recognizes that policy considerations may dictate a cause of action should not be
sanctioned no matter how foreseeable the risk.” [Citation.] “[T]here are clear judicial

                                              6
days on which a court can foresee forever and thus determine liability but none on which
the foresight alone provides a socially and judicially acceptable limit on recovery of
damages for [an] injury.” [Citation] In short, foreseeability is not synonymous with
duty, nor is it a substitute.’ [Citation.]” (Ibid.)
III. Baca met her initial burden of establishing no duty to prevent the criminal act
        Baca met her initial burden of establishing that she owed no duty to prevent
Mendoza’s death in this case because it was not reasonably foreseeable that Duenas
would return to My Place to shoot its patrons. Baca presented evidence that there had
never been a shooting at My Place during her 17 years of ownership. She had never seen
Duenas before the night of the shooting and knew nothing about his background. Duenas
did not tell Baca that he intended to return or to exact retribution after he left the premises
initially.
IV. No triable issue as to duty
        Plaintiffs failed to raise any triable issue as to foreseeability. In an effort to
establish foreseeability, plaintiffs presented evidence that a waitress working at My Place
on the night of the incident told a customer several days after the incident that she had
heard Duenas say he was returning to the bar to shoot.1 There is no evidence, however
that Baca heard Duenas make such a statement. Plaintiffs also presented evidence that
Duenas had the number 38 tattooed on his inner forearm, allegedly designating him as a
member of the 38th Street gang but offered no evidence that Baca saw the tattoo or
recognized its significance. Plaintiffs’ evidence that Baca became nervous when a group
of men, including Duenas, entered the bar, because of the size of the group and because
one of the men owned a ranch at which people allegedly shot guns, and that Baca knew
that customers who consumed alcohol might act unreasonably or become violent, does
not support the conclusion that Baca knew or should have known Duenas would return to


1       The trial court overruled Baca’s hearsay objection to this evidence as well as other
evidentiary objections raised by Baca because she failed to quote the evidence objected
to, in violation of California Rules of Court, rule 3.1354. Baca did not appeal the trial
court’s evidentiary rulings.
                                                7
My Place to shoot its patrons. That Baca was a defendant in Lopez, a prior civil action by
a nightclub patron who was shot at a different business establishment owned by Baca
more than seven years before the incident at issue here does not establish the
foreseeability of Duenas’s actions in this case. Moreover, in that prior action, summary
judgment was affirmed in Baca’s favor because the court found that Baca owed no duty
to the victim because the shooting was unforeseeable as a matter of law. (Lopez, supra,
98 Cal.App.4th at p. 1015.)
       Plaintiffs cite Delgado as support for their claim that Baca’s “special relationship”
with Mendoza as the owner of a bar patronized by him created a duty to protect Mendoza
from Duenas’s criminal conduct. In Delgado, our Supreme Court reaffirmed the “well
established” principle that commercial proprietors have a duty to take “‘reasonable steps
to secure common areas against foreseeable criminal acts of third parties that are likely to
occur in the absence of such precautionary measures.’ [Citations.]” (Delgado, supra, 36
Cal.4th at p. 237, italics added.) The court in Delgado did not abrogate foreseeability as
a crucial factor in determining the existence and scope of the duty owed by a commercial
proprietor to its patrons but set forth a “sliding-scale balancing formulation” for
determining the scope of that duty:
               “In circumstances in which the burden of preventing future harm
       caused by third party criminal conduct is great or onerous (as when a
       plaintiff . . . asserts the defendant had a legal duty to provide guards or
       undertake equally onerous measures, or as when a plaintiff . . . asserts the
       defendant has a legal duty to provide bright lighting, activate and monitor
       security cameras, provide periodic ‘walk-throughs’ by existing personnel,
       or provide stronger fencing), heightened foreseeability -- shown by prior
       similar criminal incidents or other indications of a reasonably foreseeable
       risk of violent criminal assaults in that location -- will be required. By
       contrast, in cases in which harm can be prevented by simple means or by
       imposing merely minimal burdens, only ‘regular’ reasonable foreseeability
       as opposed to heightened foreseeability is required.”

(Delgado, supra, 36 Cal.4th at pp. 243-244, fn. 24.)
       Plaintiffs claim the trial court’s analysis in this case was faulty because it was
premised solely on Baca’s alleged failure to hire security guards and the “high degree of

                                              8
foreseeability” required to impose such a duty, and that the trial court ignored the
“sliding-scale balancing formulation” set forth in Delgado. They claim a substantially
lower threshold for determining foreseeability should have been applied because they
alleged that Baca could have taken other reasonable, relatively simple, and minimally
burdensome measures to prevent Mendoza’s death, such as “inform[ing] police of the
threat, warn[ing] the patrons of MY PLACE of the threat” or “clos[ing] MY PLACE as a
result of the threat.”
       The statement of decision makes clear that the trial court did not apply an elevated
threshold of foreseeability but rather properly determined whether Duenas’s violent
criminal act was “reasonably” foreseeable under the circumstances. The trial court also
addressed plaintiffs’ allegations regarding additional measures Baca could have taken,
noting that the same result could have occurred even if Baca had taken such measures.
The court observed that plaintiffs’ own evidence showed the existence of a window at the
front of the bar through which Duenas could have fired his gun. Plaintiffs’ conclusion
that Baca could have prevented Duenas from shooting is speculative, at best.
       The same reasoning applies to plaintiffs’ argument that Baca may be held liable
for negligently undertaking to protect Mendoza and the other patrons by calling 911 in
response to Duenas’s physical altercation with Garcia but then telling the dispatcher that
no police response was necessary because Duenas had already left the premises and by
initially locking the doors to the premises after Duenas’s departure but subsequently
unlocking the front door through which Duenas forced his way back in. As the trial court
noted, there is no evidence to suggest that Baca’s actions or omissions encouraged the
shooting. Rather, the evidence showed that Baca attempted to prevent further violence in
her bar by calling the police when the physical altercation between Duenas and Garcia
first started, locking the doors when she learned that Duenas had returned, and writing
down the license plate number of the vehicle Baca observed parked near her bar.
       There is no evidence to support plaintiffs’ assertion that Baca’s actions created a
dangerous condition at the premises. Providing musical entertainment, albeit not allowed
under the terms of Baca’s business license, and requiring customers to pay for requested

                                             9
songs did not, as plaintiffs suggest, create a dangerous condition that caused the shooting.
Mendoza’s injuries were not closely connected to Baca’s actions but instead were caused
by Duenas’s act of firing multiple rounds from his gun into the bar.
V. Alleged evidentiary errors
       Plaintiffs challenge the trial court’s evidentiary rulings limiting judicial notice of
the preliminary hearing transcript in People v. Duenas and the transcript of Baca’s
deposition in Lopez to the existence of those documents and excluding their contents.
They claim Baca’s testimony at the preliminary hearing came within the state of mind of
an exception to the hearsay rule because her statement that she did not want the police to
respond to My Place during her initial 911 call was offered to show the effect of that
statement on the police rather than to prove the truth of the statement itself. Plaintiffs
further claim Baca’s deposition testimony in Lopez, the prior civil action involving the
1999 shooting at the El Castillo Night Club, was offered to show Baca’s motivation to
make money from customers by “scamming” them without their knowledge. Plaintiffs
fail to establish how the effect of Baca’s statements on the 911 dispatcher or the
motivation underlying Baca’s business practices at the El Castillo Night Club seven years
ago are relevant to the foreseeability of Duenas’s actions in this case. The trial court did
not abuse its discretion by limiting judicial notice of those documents.
       Summary judgment was properly granted in this case.
                                      DISPOSITION
       The judgment is affirmed. Baca is awarded her costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

                                                   _____________________________, J.
                                                   CHAVEZ
We concur:

____________________________, P. J.
BOREN

____________________________, J.
ASHMANN-GERST

                                              10
