Filed 9/23/13 Hernandez v. Fusion Food & Boba Cafe CA4/1

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



BRIAN HERNANDEZ,                                                    D060875

         Plaintiff and Appellant,

         v.                                                         (Super. Ct. No. 37-2010-00090086-
                                                                                    CU-PO-CTL)
FUSION FOOD & BOBA CAFE et al.

         Defendants and Respondents.



         APPEAL from a judgment of the Superior Court of San Diego County, Joan M.

Lewis, Judge. Affirmed.

         Manahan, Flashman & Brandon, Amanda E. Manahan and Jeffrey S. Flashman for

Plaintiff and Appellant.

         White, Oliver, Amundson & Gallagher, Susan L. Oliver and Fernando Kish for

Defendants and Respondents Fushion Food & Boba Cafe and Cuong Lien.

         Caroline L. Dasovich & Associates, Caroline L. Dasovich and Shenne J. Hahn for

Defendants and Respondents Capitol Security Services, Inc.
       This case arises from an assault and battery against plaintiff Brian Hernandez in

the parking lot of the Mercury Village Shopping Center (Mercury Village) where

Hernandez and his girlfriend had gone for a gathering of car enthusiasts. Defendant

Fusion Food & Boba Cafe (Fusion Food) leases premises within the shopping center.

       The incident occurred when Hernandez attempted to defuse a verbal confrontation

between his friend, Fernando, and a man named Christopher Jones. After initially

walking away, Jones suddenly turned and without warning attacked Hernandez, punching

him in the face and body, slamming him into the hood of a car, and then kicking him

while he lay on the ground.

       Defendant Capitol Security Services Inc's (CSSI's) on-site security employee tried

to stop the assault, then called 911. The police arrived in three minutes, and paramedics

then transported plaintiff to the hospital. Hernandez sustained severe injuries, including a

broken left jaw and facial lacerations.

       Hernandez filed a complaint against, among others, Fusion Food and CSSI for

general negligence and premises liability.

       Fusion Food and CSSI (collectively defendants) moved for summary judgment,

asserting they had no duty to protect Hernandez from an unforeseeable violent attack

because there had been no previous prior criminal acts at Mercury Village. The court

granted summary judgment.

       On appeal, Hernandez asserts the court erred in granting summary judgment

because (1) prior criminal acts are not the sole factor in determining whether a duty

existed for purposes of premises liability; (2) once the attack commenced, Fusion and

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CSSI had a duty to intervene; (3) the provider of security services can be separately liable

for negligence outside of the premises liability claim; (4) the fact criminal conduct was

involved does not eliminate causation; and (5) the court improperly excluded certain

evidence. We affirm.

                   FACTUAL AND PROCEDURAL BACKGROUND

       A. Factual Background

       At about 9:00 p.m. on the evening of April 29, 2008, Hernandez, who at the time

of the incident was 19 years old, went to Mercury Village to attend a car rally and to meet

other friends with his girlfriend. He saw a friend, Fernando, being confronted by Jones.

Jones accused Fernando of stealing a car or car parts. At the time, Fernando was 16 years

old, approximately five feet seven inches tall, and weighed about 130 pounds. Jones was

in his 20's, approximately six feet four or five inches tall, and weighed 240 to 260

pounds. Hernandez attempted to calm Jones and stop the confrontation.

       After initially walking away, Jones abruptly returned to the area where Hernandez

was talking with his friends and without warning attacked Hernandez from behind. Jones

struck Hernandez five times in the head and stomach, picked up his body and slammed it

against the hood of a car, then stomped on his face and kicked him six times while he lay

unconscious on the ground. This attack occurred in the presence of 15 or 16 witnesses.

       In response to the sudden attack on Hernandez, CSSI's security employee

immediately ran over to try to stop the fight, then called 911 to report the incident to

police and request paramedic assistance for Hernandez. The police arrived within three

minutes of the call.

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       The property manager for Mercury Village hired CSSI to provide security

services. Fusion Food paid for some of the costs of CSSI, but had no involvement in the

selection and hiring of CSSI. Fusion Food did not train or control CSSI guards who

performed services at the shopping center.

       The lease between Mercury Village and Fusion Food provides that Fusion Food

does not own, maintain or control any part of the shopping center's common areas,

including the parking lot and driveways. The parking lot where the assault occurred is a

common area over which Mercury Village had exclusive control.

       It is undisputed that Fusion Food, the property manager of Mercury Village, CSSI,

and Hernandez himself were all unaware of any incidents of violence occurring at the

shopping center prior to Jones's assault on Hernandez. In fact, the owner of Mercury

Village stated in interrogatory responses that there were no prior violent criminal acts on

the premises. (RA 191,198).

       B. Procedural Background

       Hernandez filed a complaint in April 2010 against Jones for assault and battery

and against Fusion Food, Anza Pacific Properties, Inc., Mercury Village Holdings, and

CSSI for general negligence and premises liability.1 The complaint alleged that

Hernandez suffered physical and mental injuries as a result of the assault.




1       Jones, Anza Pacific Properties, Inc. and Mercury Village Holdings are not parties
to this appeal.
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       Except for Jones, all defendants moved for summary judgment. The motions were

based on the grounds that they had no duty to protect Hernandez from an unforeseeable

violent criminal attack.

       The court granted summary judgment in favor of all defendants. In granting

summary judgment in favor of Fusion, the court noted that Hernandez alleged in his

complaint that Fusion "did not adequately and properly train security guards to protect

[Hernandez] from the criminal acts of third persons on the premises. It is undisputed,

however, that no one from [Fusion] had any involvement in the training of the security

guards." The court further found that, "[b]ased on the allegations of the complaint, the

Court concludes that [Hernandez] is seeking to impose a duty of preventing future harm

that is great (e.g., additional security) and has failed to articulate how the harm could

have been prevented by simple means. The Court additionally concludes that the assault

on [Hernandez] was, if anything, a mere possibility. Assessing both the burden and

foreseeability issues in this case, independently, the Court concludes that [Fusion] did not

owe [Hernandez] a duty to protect him from the unforeseeable criminal conduct by

Christopher Jones."

       The court sustained Fusion's evidentiary objections to certain documentary

evidence submitted by Hernandez based upon a lack of authentication. The court also

sustained Fusion's objections to the declaration of Hernandez's expert witness, Chris E.

McGoey, that opined the possibility of fights breaking out at car rallies should have been

foreseeable to Fusion as lacking in foundation and constituting an improper conclusion of

law.

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       As to CSSI's motion for summary judgment, the court found that because there

were no prior similar attacks, the attack was not foreseeable. The court also rejected

McGoey's declaration that the attack was foreseeable as lacking foundation and an

improper legal conclusion.

       This timely appeal follows.

                                       DISCUSSION

           I. STANDARDS GOVERNING SUMMARY JUDGMENT MOTIONS

       The summary judgment procedure is directed at revealing whether there is

evidence that requires the fact-weighing procedure of a trial. "'[T]he trial court in ruling

on a motion for summary judgment is merely to determine whether such issues of fact

exist, and not to decide the merits of the issues themselves.' [Citation.] The trial judge

determines whether triable issues of fact exist by reviewing the affidavits and evidence

before him or her and the reasonable inferences which may be drawn from those facts."

(Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 131.) However, a

material issue of fact may not be resolved based on inferences if contradicted by other

inferences or evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.)

       "The evidence of the moving party [is] strictly construed, and that of the opponent

liberally construed, and any doubts as to the propriety of granting the motion [are to] be

resolved in favor of the party opposing the motion." (Branco v. Kearny Moto Park, Inc.

(1995) 37 Cal.App.4th 184, 189.) The trial court does not weigh the evidence and

inferences, but instead merely determines whether a reasonable trier of fact could find in

favor of the party opposing the motion, and must deny the motion when there is some

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evidence that, if believed, would support judgment in favor of the nonmoving party.

(Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 139, disapproved

on other grounds in Reid v. Google (2010) 50 Cal.4th 512, 524.) Consequently, summary

judgment should be granted only when a moving party is entitled to judgment as a matter

of law. (Code Civ. Proc., § 437c, subd. (c).)

       Because a motion for summary judgment raises only questions of law, we

independently review the parties' supporting and opposing papers and apply the same

standard as the trial court to determine whether there exists a triable issue of material fact.

(City of San Diego v. U.S. Gypsum Co. (1994) 30 Cal.App.4th 575, 582; Southern Cal.

Rapid Transit Dist. v. Superior Court (1994) 30 Cal.App.4th 713, 723.) In practical

effect, we assume the role of a trial court and apply the same rules and standards

governing a trial court's determination of a motion for summary judgment. (Lopez v.

University Partners (1997) 54 Cal.App.4th 1117, 1121-1122.) We liberally construe the

evidence in support of the party opposing summary judgment (Wiener v. Southcoast

Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142) and assess whether the evidence

would, if credited, permit the trier of fact to find in favor of the party opposing summary

judgment under the applicable legal standards. (Cf. Aguilar v. Atlantic Richfield Co.,

supra, 25 Cal.4th at p. 850.)

                                       II. ANALYSIS

       A. Lack of Prior Incidents

       In Wiener v. Southcoast Childcare Centers, Inc., supra, 32 Cal.4th at page 1150,

the California Supreme Court held that in the absence of a prior similar incident the

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operator of a child care center did not owe a duty to protect against a violent criminal

assault by a man intentionally driving a car through a four-foot-high chain link fence onto

a playground and into a group of children. In doing so, our high court noted that "our

cases analyze third party criminal acts differently from ordinary negligence, and require

us to apply a heightened sense of foreseeability before we can hold a defendant liable for

the criminal acts of third parties." (Id. at pp. 1149-1150; see also Alvarez v. Jacmar

Pacific Pizza Corp. (2002) 100 Cal.App.4th 1190, 1212 ["Absent foreseeability of the

particular criminal conduct, there is no duty to protect plaintiff from that particular type

of harm."].)

       As such, foreseeability of third party criminal conduct "rarely, if ever, can be

proven in the absence of prior similar incidents of violent crime on the landowner's

premises. To hold otherwise would be to impose an unfair burden upon landlords and, in

effect, would force landlords to become the insurers of public safety, contrary to well-

established policy in this state." (Ann M. v. Pacific Plaza Shopping Center (1993) 6

Cal.4th 666, 679 (Ann M.), fn. omitted, disapproved on another ground in Reid v. Google,

supra, 50 Cal.4th at p. 527, fn. 5.)

       It is undisputed that Fusion, CSSI, the property manager for the shopping center,

and indeed Hernandez himself were unaware of any prior similar acts of violence at

Mercury Village.

       Hernandez asserts that the lack of prior similar acts, alone, is insufficient to

determine whether an occupier of land owes a duty to protect against the criminal acts of

third parties. In support of this contention, Hernandez cites Onciano v. Golden Palace

                                              8
Restaurant, Inc. (1990) 219 Cal.App.3d 385 (Onciano). It is true that the Court of

Appeal in Onciano did hold that a lack of prior incidents "does not by itself negate the

element of foreseeability as a matter of law." (Id. at page 393.)

       However, the viability of Onciano is questionable in light of the subsequent

Supreme Court decision in Ann M., supra, 6 Cal.4th 666. (See Eric J. v. Betty M. (1999)

76 Cal.App.4th 715, 721, fn. 5.) Onciano relied on Isaacs v. Huntington Memorial

Hospital (1985) 38 Cal.3d 112 for the proposition that foreseeability can be established

despite a lack of prior similar incidents on the premises. However, the California

Supreme Court later revisited and revised this rule in Ann M., supra, 6 Cal.4th at pages

678-679, holding that foreseeability requires prior similar incidents.

       As Division 3 of the Fourth District Court of Appeal stated in Eric J. v. Betty M.,

supra, 76 Cal.App.4th at page 721, footnote 5: "The viability of the holding in Onciano

is questionable in light of the subsequent Supreme Court decision in Ann M.[, supra,] 6

Cal.4th 666. Onciano relied on Isaacs v. Huntington Memorial Hospital, supra, 38

Cal.3d 112 to reject the idea that a lack of prior criminal activity was not dispositive in

the landowner's favor, a fact which Justice Fred Woods would find troubling in a separate

concurring opinion, where he lamented Isaacs's 'broad brush dicta.' (See Onciano[],

supra, 219 Cal.App.3d at pp. 396-397 (conc. and dis. opn. of Woods (Fred) J.).) Liability

in the face of the absence of notice of prior criminal activity, however, was dispositive in

favor of the landowner in Ann M., a rationale which Justice Mosk, in his dissent in Ann

M., criticized as being inconsistent with Isaacs. (See Ann M., supra, 6 Cal.4th at pp. 680-

683 (dis. opn. of Mosk, J.).) "

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       The existence and scope of a business owner's duty to protect against a threat of

future criminal activity, imminent or otherwise, depends on the foreseeability of the sort

of criminal conduct that actually occurred. (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th

1181, 1195 ["defendants' duty of care did not include the hiring of security guards for the

garage because the bank robberies were not sufficiently similar to the sexual assault

crime to establish a high degree of foreseeability"], disapproved on another ground in

Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853, fn. 19; Lopez v. McDonald's

Corp. (1987) 193 Cal.App.3d 495, 510-511 [existence of prior crimes on business

premises in high crime area, including two robberies, did not make massacre by armed

criminal reasonably foreseeable]; Gregorian v. National Convenience Stores, Inc. (1985)

174 Cal.App.3d 944, 950 ["While the proprietor of an all-night convenience store

may . . . reasonably anticipate that his place of business will be the target of armed

robbers, the same cannot be said for a crime resulting from gang violence."].)

       "[I]n the case of criminal conduct by a third party, an extraordinarily high degree

of foreseeability is required to impose a duty on the landowner, in part because 'it is

difficult if not impossible in today's society to predict when a criminal might strike.'"

(Garcia v. Paramount Citrus Assn., Inc. (2008) 164 Cal.App.4th 1448, 1457, italics

omitted, quoting Wiener v. Southeast Childcare Centers, Inc., supra, 32 Cal.4th at p.

1150.) "In each case, however, the existence and scope of a property owner's duty to

protect against third party crime is a question of law for the court to resolve." (Castaneda

v. Olsher (2007) 41 Cal.4th 1205, 1213.)



                                             10
       As we have discussed, ante, Fusion had no notice of any prior similar acts of

violence at Mercury Village. The property manager and owner of Mercury Village

similarly are not aware of any prior acts of violence. Indeed, the owner has stated that

there were no prior acts of violence at that shopping center. CSSI is also unaware of any

prior incidents of violence. Hernandez himself concedes he is unaware of any prior acts

of violence. Thus, the court properly granted summary judgment because the criminal

assault by the third party was not foreseeable.

       B. Proposed Measures To Prevent The Harm

       Hernandez also asserts that the court erred in granting summary judgment in favor

of Fusion because its ruling was based solely upon a finding that there were no prior

similar acts of violence. This contention is unavailing. The court also considered

measures proposed by Hernandez to prevent the harm, as well as the burden on Fusion of

adopting such measures.

       The only measure Hernandez suggested was that defendants did not adequately

train security guards to protect against criminal acts of third parties. However, it is

undisputed that Fusion had no involvement in the training of security guards.

Accordingly, the court correctly determined that Hernandez failed to identify how the

harm could have been prevented by additional measures.

       C. Rowland Factors

       Hernandez also asserts that determining the existence and scope of the duty owed

in this case requires application to the factors announced in Rowland v. Christian (1968)

69 Cal.2d 108, 113 (Rowland). This contention is unavailing.

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        The factors announced in Rowland are used to determine the scope and existence

of duty in ordinary premises liability cases. Here, we have a case involving an injury

caused by the criminal act of a third party. The lack of forseeability alone in this case is

dispositive.

        D. Duty To Intervene

        Hernandez asserts that Fusion and CSSI had a duty to intervene once the

altercation between he and Jones commenced. We reject this contention.

        Initially, this argument has been waived as Hernandez did not raise it below. We

do not consider theories that were not advanced by an appellant before the trial court.

(DiCola v. White Brothers Performance Products, Inc. (2008) 158 Cal.App.4th 666,

676.)

        Moreover, CSSI presented uncontroverted evidence that its security guard did

attempt to intervene and then called 911. Moreover, as to Fusion, there is no evidence

that the altercation took place in the presence of any of its employees.

        E. Evidentiary Objections

        Hernandez asserts that the court erred in sustaining objections to its evidence made

by Fusion and CSSI. This contention is unavailing.

        The court expressly stated in its ruling granting summary judgment in favor of

Fusion that "[e]ven if the Court were to overrule the Defendant's evidentiary objections

and consider all evidence submitted, this Court is of the opinion that there simply were no

similar prior incidents or other circumstances that would support imposing a duty on

Defendant to protect against the harm suffered by Plaintiff." (Italics omitted.) Thus, as

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to Fusion, even if the court erred in sustaining its evidentiary objections, it would not

change the result of Fusion's motion for summary judgment.

       Hernandez first asserts the court erred in not considering a "supplemental"

declaration that was filed to authenticate documents he filed in opposition to the

summary judgment motion. However, the supplemental declaration included in the

appellant's appendix does not have a stamp indicating it was ever filed with the court.

Therefore, the court did not err in failing to consider that declaration as the record does

not reflect that it was ever presented to the court.

       Hernandez also asserts the court erred in sustaining the defendants' objections to

the declaration of his security expert. This contention is unavailing.

       "There are limits to expert testimony, not the least of which is the prohibition

against admission of an expert's opinion on a question of law." (Summers v. A. L. Gilbert

Co. (1999) 69 Cal.App.4th 1155, 1178.) Moreover, "'[t]he manner in which the law

should apply to particular facts is a legal question and is not subject to expert opinion.'"

(Id. at p. 1179.) Further, "an expert opinion based on speculation or conjecture is

inadmissible." (Lockheed Litigation Cases (2004) 115 Cal.App.4th 558, 564; Mitchell v.

United Nat'l Ins. Co. (2005) 127 Cal.App.4th 457, 478; Evid. Code, § 801, subd. (b).)

       Here, the court properly sustained the defendants' objections to McGoey's

declaration. For example, in his declaration McGoey concluded that Hernandez was

injured "as a direct result of a [CSSI] guard allowing a large crowd of young men to loiter

while attending a car rally in the parking lot." There is no evidence in the record that a

"large crowd of young men" was present at the time of the attack, and the term "loitering"

                                              13
is itself a legal conclusion. McGoey further opines that "based on the broad range of

[CSSI's] responsibilities and powers . . . it is my opinion that [CSSI] maintained and

exercised control over the premises while they worked at Mercury Village during the car

rallies." This opinion is also an improper legal conclusion. McGoey further opined that

"[b]ased on the information that was known to [CSSI] before the incident . . . , it was

foreseeable that a fight or another type of violent incident could occur in the parking lot

during one of the rallies." This opinion is also an improper legal conclusion. It is also

speculative because, as we have discussed, ante, there were no prior similar incidents.

                                      DISPOSITION

       The judgment is affirmed. Respondents shall recover their costs on appeal.



                                                                                 NARES, J.

WE CONCUR:


HUFFMAN, Acting P. J.


HALLER, J.




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