Franco v. Security Industry Specialists CA2/3 ( 2021 )

Filed 11/2/21 Franco v. Security Industry Specialists CA2/3
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California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
DIANE FRANCO et al., B304976
Plaintiffs and Appellants, Los Angeles County
Super. Ct. No.
v. BC635188
SECURITY INDUSTRY
SPECIALISTS, INC., et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Robert B. Broadbelt, Judge. Reversed and
remanded.
Nelson & Fraenkel, Stuart R. Fraenkel, Gabriel S.
Barenfeld, Gabriel Beugelmans; Law Offices of Savin & Bursk
and Adam J. Savin for Plaintiffs and Appellants.
Wesierski & Zurek, Ronald Zurek and Lynne Rasmussen
for Defendants and Respondents.
_______________________________________
INTRODUCTION
Anthony R. Pineda and Diane Franco (Parents) sued,
among others, Star World Plaza (Plaza), the Plaza’s owners
George Younan and Ratiba Younan, and Wayne Ng,1 the Plaza’s
property manager, for negligence, premises liability, and
wrongful death, after the Parents’ son, Anthony V. Pineda
(Anthony), was killed during an armed robbery while he was
working as a security guard and receptionist at an unlicensed
marijuana dispensary in the Plaza. The Landlords moved for
summary judgment, claiming they owed no duty of care to
Anthony because the armed robbery was not foreseeable and, in
any event, the Parents could not prove the lack of additional
security measures contributed to Anthony’s death. The court
granted summary judgment in the Landlords’ favor, and the
Parents appealed.
Under the circumstances of this case, we conclude the
Landlords owed Anthony a duty to provide minimally
burdensome security measures—a reinforced security door and
commercial grade lock—inside the dispensary. We also conclude
there is a triable issue of fact concerning whether the Landlords’
failure to provide these security measures contributed to
Anthony’s death. We therefore reverse the judgment.
1We collectively refer to the Plaza, the Younans, and Ng as the
“Landlords.”
2
FACTS AND PROCEDURAL BACKGROUND
1. The Property
George and Ratiba Younan own the Plaza, a commercial
strip mall in the City of San Bernardino. Ng is the Plaza’s
property manager. Ng handles all of the property’s day-to-day
management, including negotiating and executing lease
agreements with new tenants, collecting rent payments from
existing tenants, and hiring security services to monitor the
property.
In November 2014, the Landlords agreed to lease one of the
Plaza’s units to Ernesto Atanacio III to operate the “House of
OG,” a medical marijuana dispensary. According to the lease
agreement, the unit was to “be used exclusively as a Medical
Marijuana Dispensary in compliance with state regulations.”
When the lease agreement was executed, and through the events
leading to this lawsuit, it was illegal to operate marijuana
dispensaries in San Bernardino.2
Atanacio agreed to pay $4,000 per month for the first three
months of rent, with the amount of rent increasing to $5,000 per
2 Specifically, San Bernardino Municipal Code Chapter 5.05.010 made
it “unlawful for any person or entity to establish, own, manage,
conduct, or operate any medical marijuana dispensary … or to
participate as an employee, contractor, agent, volunteer, or in any
other manner or capacity, in any medical marijuana dispensary in the
City of San Bernardino.” Ordinance No. MC-1349, which enacted
Chapter 5.05.010 of the San Bernardino Municipal Code, states that
the City banned medical marijuana facilities because other cities that
had permitted such businesses experienced significant increases in
violent crime, including burglaries, robberies of customers leaving
dispensaries, and takeover robberies of dispensaries.
3
month for the remainder of the lease. When he signed the lease
agreement, Atanacio paid the Landlords $18,000, consisting of a
$10,000 non-refundable security deposit and the first two months
of rent. The amount of rent the Landlords charged Atanacio was
significantly higher per square foot than what they charged other
tenants in the Plaza.3
2. Prior Incidents of Violence at the Plaza
Before the House of OG opened, the Landlords leased retail
space in the Plaza to another medical marijuana dispensary.
Although there were no reported incidents of violence involving
the other dispensary, there were at least seven reported robberies
and thefts on the Plaza’s property between 2012 and 2014. And,
about four months before the House of OG opened, a person was
killed in a gang-related shooting in the Plaza’s parking lot. A few
months later (but before leasing property to the House of OG), Ng
hired a security company to patrol the Plaza’s parking area at
night.
3. The Shooting at the Dispensary
One evening in February 2015, Anthony was working as an
armed security guard and receptionist at the House of OG.
Anthony was the only security guard on duty. He was working in
3 For example, a nutritional store that occupied the same amount of
square footage as the unit occupied by the House of OG—1,200 square
feet—paid only $755 per month in rent. And a market that occupied a
unit that was 10,000 square feet and a Chinese food restaurant that
occupied a unit that was 2,100 square feet paid, respectively, $4,744
per month and $1,381 per month in rent. In other words, most of the
Plaza’s other tenants paid less than $1 per square foot, while the
House of OG paid between $3.33 and $4.17 per square foot.
4
the store’s product room, which was separated from the front
lobby by a sliding glass window and a “thin paneled unreinforced”
door that was connected to an “electronic locking mechanism.”
Shortly before the House of OG was supposed to close that
night, two men armed with guns entered the dispensary’s lobby.
They opened the interior door separating the lobby from the
product room and shot and killed Anthony as he tried to prevent
them from accessing the product room. The lock on the interior
door wasn’t working when Anthony was killed.
4. The Lawsuit
The Parents filed a lawsuit against, among others, Star
World Plaza, the Younans (in their individual capacities and as
co-trustees of the Younan Family Trust), and Ng, asserting
claims for negligence, wrongful death, and premises liability, all
arising out of Anthony’s death during the February 2015 shooting
at the House of OG. The Parents claimed the Landlords were
responsible for Anthony’s death because they leased retail space
to an illegal marijuana dispensary, they knew the Plaza attracted
violent criminal conduct, and they failed to provide adequate
security measures to protect tenants and invitees, like Anthony,
from such conduct.
The Landlords4 filed separate summary judgment motions.
In support of their motions, the Landlords submitted the Parents’
responses to special interrogatories and requests for admissions.
Ng and George Younan submitted declarations in which they
4The Younans and the Plaza jointly filed one motion and Ng filed his
own motion. Because they filed a joint respondents’ brief and don’t
present any arguments differentiating their legal positions on appeal,
we discuss the Landlords’ arguments collectively.
5
testified that they were unaware of any violent crime that had
occurred on the Plaza’s property before Anthony was killed at the
House of OG.
The Landlords argued they didn’t owe Anthony a duty to
protect him from third-party criminal conduct because they were
unaware of any prior criminal conduct at the Plaza, rendering the
shooting at the dispensary unforeseeable. As for causation, the
Landlords claimed the Parents couldn’t present any non-
speculative evidence to support a finding that additional security
measures would have prevented the shooting that killed
Anthony.
The Parents opposed both motions. They contended the
February 2015 shooting at the House of OG was foreseeable
because a marijuana dispensary was an obvious target for
robberies and several violent crimes on the Plaza’s property had
been reported in the three years before the dispensary opened.
The Parents claimed the Landlords could have prevented
Anthony’s death by refusing to lease premises in the Plaza to an
illegal marijuana dispensary or, in the alternative, by enacting
more effective security measures at the dispensary, including: (1)
hiring a second armed guard to protect the outside of the
dispensary and the dispensary’s lobby; (2) ensuring the
dispensary was equipped with a working video surveillance
system that covered the exterior and interior of the dispensary’s
unit; (3) installing a steel security door equipped with a
commercial grade keypad lock with a deadbolt and reinforcer
separating the product room from the lobby; and (4) installing
bullet proof glass between the lobby and the receptionist. The
Parents also argued there were triable issues of fact as to
whether the Landlords contributed to Anthony’s death by leasing
6
retail space to an illegal and inherently dangerous business and
by failing to provide more effective security measures on the
House of OG’s premises.
In support of their oppositions, the Parents submitted,
among other things, police reports and photographs from the
investigation of the shooting at the House of OG, excerpts of
transcripts from the criminal trial of the defendants suspected of
shooting Anthony, and excerpts of the transcripts from Ng’s and
George Younan’s depositions.5 In one of the police reports, the
investigating officer observed that the lock on the unreinforced
door separating the House of OG’s lobby from the product room
had malfunctioned and the store’s interior and exterior security
cameras weren’t recording any footage at the time of the
shooting. And two of the employees who were working at the
dispensary at the time of the shooting testified that the suspects
were able to force open the door between the lobby and the
product room before they shot Anthony.
The Parents also submitted declarations from Rudy
Petersen, a police officer and security specialist, addressing the
industry standards for security measures at marijuana
dispensaries. According to Petersen, it would have cost: (1) about
$55 per hour to hire a second armed guard; (2) about $100 per
month to operate working video surveillance equipment; (3) about
$1,000 to install a bullet resistant steel security door with a
commercial grade keypad lock; and (4) between $50 to $150 per
square foot for a bullet proof window.6
5 The Landlords didn’t object to any of this evidence.
6 The court overruled objections to Peterson’s testimony regarding the
industry standard for security of marijuana dispensaries and his
7
The court granted the Landlords’ summary judgment
motions. The court found the Landlords didn’t owe Anthony a
duty to protect him from third-party criminal conduct.
Specifically, the court found the shooting in this case was not
sufficiently foreseeable to require the Landlords to provide any of
the Parents’ proposed security measures because there had been
no similar incidents of violence involving a marijuana dispensary
on the Plaza’s property in the past. The court also rejected the
Parents’ claim that the Landlords’ conduct was negligent per se
because they knowingly leased retail space to a marijuana
dispensary in violation of local ordinances outlawing such
businesses. As for causation, the court found the Parents failed to
establish a triable issue of fact that the Landlords’ failure to
provide additional security measures at the House of OG
contributed to Anthony’s death.
The court entered judgment in the Landlords’ favor. The
Parents appeal, challenging both orders granting summary
judgment.
DISCUSSION
1. Principles of Summary Judgment and Standard of
Review
A court may grant summary judgment where no triable
issues of material fact exist and the moving party is entitled to
judgment as a matter of law. (Merrill v. Navegar, Inc. (2001) 26
opinion that such measures were necessary to protect persons who
were lawfully within the dispensaries. The court, however, sustained
objections to Peterson’s testimony that the lack of an adequate interior
security door and additional security guard contributed to Anthony’s
death.
8
Cal.4th 465, 476 (Merrill).) Defendants who move for summary
judgment must show that one or more elements of the plaintiffs’
claim cannot be established or that there exists a complete
defense to the claim. (Code Civ. Proc., § 437c, subd. (p)(2).) If the
defendants make a sufficient showing, the burden shifts to the
plaintiffs to present evidence establishing a triable issue of
material fact. (Ibid.) A triable issue of fact exists if the evidence
would allow a reasonable trier of fact to find in favor of the party
opposing summary judgment. (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850 (Aguilar).)
We independently review a trial court’s ruling on a motion
for summary judgment. (Aguilar, supra, 25 Cal.4th at p. 860.) We
liberally construe the evidence in favor of the opposing party and
resolve all doubts about the evidence in that party’s favor.
(Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th
1138, 1142.) We consider all evidence the parties submit in
connection with the motion, except that which the court properly
excluded. (Merrill, supra, 26 Cal.4th at p. 476.)
2. Evidentiary Rulings
As a preliminary matter, we address the Parents’
challenges to some of the court’s evidentiary rulings. As we
explain, none of these challenges are adequately developed in the
Parents’ opening brief.7
7 To the extent the Parents present additional arguments in their reply
brief challenging the court’s evidentiary rulings, those arguments are
not properly before us. (REO Broadcasting Consultants v.
Martin (1999) 69 Cal.App.4th 489, 500 [appellate courts won’t consider
issues raised for the first time in a reply brief because it deprives
opposing counsel of the opportunity to respond].)
9
In a footnote in their opening brief, the Parents claim the
court “erroneously denied” their request for judicial notice of a so-
called “White Paper,” a document drafted by an association of the
State’s police chiefs outlining the potential risks marijuana
dispensaries pose to their surrounding communities and citing
specific examples of violence targeting marijuana dispensaries
and people who possess marijuana. The San Bernardino City
Council relied on the “White Paper” when it enacted Chapter 5.05
of the San Bernardino Municipal Code.
The Parents don’t develop this point at all, making only a
conclusory assertion that the court erred when it denied their
request for judicial notice. It is well-settled that a ruling of the
lower court is presumed correct, and it is incumbent on the party
challenging that ruling to affirmatively demonstrate why it was
erroneous through, among other things, reasoned legal analysis.
Because the Parents offer no legal argument to support their
claim that the court erred in excluding the “White Paper,” they
have waived that claim on appeal. (Dix v. Live Nation
Entertainment, Inc. (2020) 56 Cal.App.5th 590, 616 [“ ‘[i]f a
party’s briefs do not provide legal argument and citation to
authority on each point raised, “ ‘the court may treat it as waived,
and pass it without consideration.’ ” ’ ”].)
Likewise, the Parents have waived their challenges to the
court’s rulings excluding portions of two of their experts’
testimony. “It is [the] appellant’s ‘burden to affirmatively
challenge the trial court’s evidentiary ruling[s], and demonstrate
the court’s error.’ [Citation.]” (Salas v. Department of
Transportation (2011) 198 Cal.App.4th 1058, 1074 (Salas).) If a
party contends that an evidentiary objection was improperly
sustained by the trial court, “the party must identify the specific
10
objection, provide legal argument explaining why the trial court’s
ruling was in error, and support that argument with citation to
pertinent legal authority.” (City of Crescent City v. Reddy (2017) 9
Cal.App.5th 458, 463.)
Here, the Parents point to portions of their experts’
testimony that they claim the court should have admitted. They
do not, however, “specif[y] the [underlying] evidentiary
objections” giving rise to the challenged rulings, identify any of
the multiple grounds on which those objections were made, or
attempt to explain why those grounds do not support excluding
the experts’ testimony. “In arguing only generalities, plaintiffs’
briefs do not contain ‘argument and citations to authority as to
why the trial court’s evidentiary rulings were wrong.’ [Citation.]”
(Salas, supra, 198 Cal.App.4th at p. 1074.) Plaintiffs have
therefore forfeited their challenges to the court’s rulings
excluding portions of the expert witnesses’ testimony. (Ibid.) In
any event, any error in excluding portions of the experts’
testimony was harmless for the reasons we discuss in the
causation analysis below.
3. Legal Principles Concerning a Landlord’s Duty to
Protect Against Third-Party Criminal Conduct
When asserting claims for wrongful death, premises
liability, and negligence arising out of the defendants’ alleged
negligent maintenance of their property, the plaintiff must show
the defendants owed the decedent a legal duty and that the
defendants’ breach of that duty was a cause of the decedent’s
death. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th
666, 678 (Ann M.), disapproved on another ground in Reid v.
Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5 (Reid); see also
Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654, 662
11
[same analysis applies to a claim for premises liability based on a
theory of negligence]; Jacoves v. United Merchandising Corp.
(1992) 9 Cal.App.4th 88, 105 [a complaint asserting claim for
wrongful death based on a theory of negligence must contain
allegations as to all the elements of negligence].)
The first issue we must decide is whether the Landlords
owed Anthony a duty to protect him from the third-party criminal
conduct that resulted in his death—i.e., the armed robbery at the
House of OG.8 Whether a duty exists is a question of law to be
decided by the court. (Brown v. USA Taekwondo (2021) 11
Cal.5th 204, 213 (Brown).)
Landlords generally owe a duty to their tenants and
invitees to maintain their property in a reasonably safe condition,
including taking “reasonable measures to secure areas under the
landlord[s’] control against foreseeable criminal acts of third
parties.” (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213
(Castaneda); see also Civ. Code, § 1714, subd. (a) [“[e]veryone is
responsible … for an injury occasioned to another by his or her
want of ordinary care or skill in the management of his or her
property … .”].) Landlords also owe a duty to “exercise reasonable
care to discover that criminal acts are being or are likely to be
committed on its land … .” (Ann M., supra, 6 Cal.4th at p. 679.)
Unless created by statute, an exception to a duty requirement
should only be applied if it is “ ‘ “clearly supported by public
8 On appeal, Ng doesn’t dispute that the scope of any duty he may owe
to the Plaza’s tenants and invitees would be the same as the duty owed
by the Plaza’s owners. (See Frances T. v. Village Green Owners Assn.
(1986) 42 Cal.3d 490, 499–503 [acknowledging that property managers
owe a duty to protect tenants and invitees against foreseeable criminal
acts].)
12
policy.” ’ [Citation.]” (Kesner v. Superior Court (2016) 1 Cal.5th
1132, 1143 (Kesner); see also Rowland v. Christian (1968) 69
Cal.2d 108, 112.)
Whether a landlord should be excepted from the duty to
protect their tenants and invitees from criminal conduct of others
is typically analyzed under a four-step process. (Castaneda,
supra, 41 Cal.4th at p. 1214; see also Brown, supra, 11 Cal.5th at
pp. 217–218 [Rowland factors determine whether to recognize an
exception to the general duty of care, not whether to establish the
existence of a duty in the first instance].) First, we must
determine the specific measures the plaintiffs claim the
defendants should have taken to prevent the underlying injury.
(Castaneda, at p. 1214.) Second, we must evaluate how
financially and socially burdensome it would be to impose the
plaintiffs’ proposed measures. (Ibid.) Third, we must “ ‘identify
the nature’ ” of the third-party criminal conduct that the
plaintiffs claim could have been prevented had the defendants
taken the proposed measures and assess how foreseeable it was
that the criminal conduct would occur. (Ibid.) Fourth, we compare
the burden of enacting the proposed security measures against
the foreseeability of the third-party conduct. (Ibid.)
Generally, the higher the burden to be imposed on a
landlord, the higher the degree of foreseeability is required. (Tan
v. Arnel Management Co. (2009) 170 Cal.App.4th 1087, 1096
(Tan).) “ ‘ “ ‘On the other hand, in cases where there are strong
policy reasons for preventing the harm, or the harm can be
prevented by simple means, a lesser degree of foreseeability may
be required.’ [Citation.]” ’ [Citation.]” (Castaneda, supra, 41
Cal.4th at pp. 1213–1214.) For instance, our Supreme Court has
held that a “high degree of foreseeability is required in order to
13
find that the scope of a landlord’s duty of care includes the hiring
of security guards” because the “monetary costs of security
guards is not insignificant” and “the obligation ... is not well
defined.” (Ann M., supra, 6 Cal.4th at p. 679.) Likewise, a duty to
refuse to rent to, or a duty to evict, a potentially dangerous
tenant requires circumstances that would have made the
plaintiff’s injury highly foreseeable. (Castaneda, at pp. 1219–
1221.) But where the proposed security measures are minimally
burdensome, such as requiring the one-time installation of
unmanned security barriers, only “regular” foreseeability of the
risk of harm is necessary. (Tan, at pp. 1100–1101 [installation of
four security gates to protect apartment complex was minimally
burdensome and required regular foreseeability of risk of harm];
see also Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 243,
fn. 24 (Delgado) [in cases where harm can be prevented by simple
means or by imposing “merely minimal burdens,” only regular
foreseeability is required].)
3.1. The Landlords owed a duty to ensure the
premises were equipped with a reinforced
interior security door and commercial grade
lock.
We first address whether the court properly found the
Landlords owed Anthony no duty to enact specific security
measures on the premises that they leased to the House of OG.
The Parents claim the Landlords should have provided the
following security measures to protect Anthony: (1) a second
armed security guard stationed near the entrance of the
dispensary; (2) a working video surveillance system that covered
the exterior and interior of the dispensary’s unit; (3) a steel
security door with a commercial grade deadbolt lock to separate
14
the dispensary’s product room from the lobby; and (4) a
bulletproof glass receptionist’s window between the dispensary’s
lobby and the product room. As we explain, the court erred in
finding the Landlords didn’t owe a duty to Anthony to install a
reinforced interior security door with a commercial grade lock on
the premises that they leased to the House of OG.9
When evaluating the burden of implementing a plaintiff’s
proposed security measures, courts may look to “various case-
specific factors,” including the characteristics of the property in
question. (Vasquez v. Residential Investments, Inc. (2004) 118
Cal.App.4th 269, 285 (Vasquez), citing Pamela W. v. Millsom
(1994) 25 Cal.App.4th 950, 958 [what may be a large burden for
the owner of small residential or commercial property may be a
minimal burden for the owner of a large apartment building or a
shopping center].) Here, the financial and social cost of installing
a reinforced interior security door with a functioning commercial
grade lock to separate the dispensary’s customer lobby from the
product room would have been minimal.
Rudy Petersen, the Parents’ expert on security standards
for marijuana dispensaries, testified that it would have cost the
Landlords about $1,000 to install a reinforced steel security door
with a commercial grade lock inside the unit they leased to
Atanacio to operate the House of OG. That would have been a
one-time expenditure that didn’t necessitate the hiring of
additional personnel to monitor or otherwise guard the premises.
9 We don’t address whether the Landlords owed a duty to provide the
other proposed security measures because, as we explain below, the
court properly found the Parents could not prove such conduct or
omissions on the Landlords’ part contributed to Anthony’s death.
15
(See Tan, supra, 170 Cal.App.4th at p. 1096 [requirement that
landlord and manager of apartment complex install four security
gates with a one-time cost of about $26,000 and no need to hire
additional security personnel to secure the property against
third-party crime was minimally burdensome].)
And, in light of the amount of rent the Landlords charged
Atanacio to lease the House of OG’s premises, the cost of
installing the security door and lock would have been negligible.
As we explained above, the Landlords charged Atanacio between
$4,000 and $5,000 per month to rent the 1,200 square-foot unit
where the House of OG operated. That amount of rent on a
square-foot basis was much higher than the amount of rent the
Landlords charged the Plaza’s other tenants at the time. Indeed,
even after accounting for a one-time $1,000 payment, the
Landlords still would have made more per month on a square-
foot basis from the dispensary’s rent than they made from any of
the other units on the Plaza’s premises. This factor clearly weighs
in favor of finding the Landlords owed a duty to install a
reinforced security door and lock inside the House of OG’s
premises.
Next, we must evaluate the foreseeability of the robbery
and shooting at the House of OG and balance that foreseeability
against the burden of installing a reinforced interior security door
with a commercial grade lock. (See Castaneda, supra, 41 Cal.4th
at p. 1214.) In its summary judgment ruling, the court applied a
heightened foreseeability standard to evaluate whether the
Landlords could have anticipated the robbery and shooting inside
the House of OG for purposes of enacting any of the Parents’
proposed security measures. For example, the court found the
Parents’ evidence of the July 2014 shooting in the Plaza’s parking
16
lot and the other robberies and assaults on the Plaza’s premises
in the three years before the Landlords leased a unit to the
dispensary was not sufficiently similar to put the Landlords on
notice of the type of crime that caused Anthony’s death.
Specifically, the court focused on the fact George Younan and Ng
each testified they had no actual knowledge of those prior
incidents and that none of the incidents occurred inside the
House of OG’s premises or involved another marijuana
dispensary at the Plaza.
The court’s heightened foreseeability analysis was flawed
as it applied to the proposed security measures of installing a
reinforced interior security door and commercial grade keypad
lock. As we explained above, where the plaintiffs’ proposed
security measures are minimally burdensome, a “lesser degree of
foreseeability”—i.e., only “regular” foreseeability—of third-party
criminal conduct is required. (Delgado, supra, 36 Cal.4th at p.
243, fn. 24.) Applying that standard here, the armed robbery of
the House of OG was sufficiently foreseeable to trigger the
Landlords’ duty to install the security door and lock inside the
dispensary’s premises.
The Parents presented evidence that there had been at
least several reported robberies or assaultive crimes and one fatal
shooting on the Plaza’s premises before the Landlords leased
retail space to the House of OG. These crimes, while not involving
a marijuana dispensary or the same unit where the House of OG
later operated, were similar to the type of crime that caused
Anthony’s death—i.e., a robbery and fatal shooting. (See Tan,
supra, 170 Cal.App.4th at p. 1100 [under a lowered standard of
foreseeability, existence of prior assaultive crimes on defendant’s
property, even though they weren’t committed in a similar
17
manner, were sufficiently similar to make the assault on the
plaintiff foreseeable].)
That George Younan and Ng each testified they were
unaware of the prior incidents of violence that occurred on the
Plaza’s premises is not dispositive. Actual knowledge of incidents
involving the same type of conduct as the underlying crime that
caused the plaintiff’s injury is not required to meet the lower
standard of foreseeability applicable to the implementation of
minimally burdensome security measures. (See Vasquez, supra,
118 Cal.App.4th at p. 286.) That is, it may be sufficient that the
owners had reason to know that their lack of adequate security
measures created a risk of third-party criminal conduct. (Ibid.;
see also Musgrove v. Ambrose Properties (1978) 87 Cal.App.3d 44,
52 [for purposes of foreseeability, a landowner may have reason
to know of risk of third party crime based on location or character
of business].)
As we noted above, landlords owe a duty to exercise
reasonable care to discover whether criminal acts are being, or
are likely to be, committed on their land. (Ann M., supra, 6
Cal.4th at p. 679.) In light of this duty, the Landlords certainly
had reason to know of the relatively extensive history of violent
crimes that occurred at the Plaza in the three years before they
leased retail space to the House of OG. Indeed, a reasonable
inference can be drawn that, at the very least, Ng was aware of
the prior fatal shooting on the Plaza’s premises based on the fact
that he hired a private security company to patrol the Plaza at
night only a few months after that shooting occurred and shortly
before leasing space to the House of OG.
In addition, based on other evidence, it was reasonable to
infer the Landlords knew of, and were compensated for, the risk
18
of leasing retail space to an unlicensed marijuana dispensary.
The Landlords received above-market rent that was paid in cash,
and they received a non-refundable security deposit. They also
failed to verify the identity of the House of OG’s operators or to
determine whether they had a business license. (Donchin v.
Guerrero (1995) 34 Cal.App.4th 1832, 1839 [landlord’s actual
knowledge can be inferred from circumstantial evidence].)
Viewing the evidence in a light most favorable to the
Parents, as we must when reviewing an order granting summary
judgment, the prior fatal shooting and numerous robberies and
other assaultive crimes on the Plaza’s premises rendered an
armed robbery inside one of the businesses at the Plaza
sufficiently foreseeable to trigger the Landlords’ duty to enact
minimally burdensome security measures. (See Tan, supra, 170
Cal.App.4th at p. 1101.)
The fact that the Landlords didn’t possess or control the
dispensary’s premises at the time of the shooting doesn’t relieve
them of a duty of care. The Parents presented evidence that,
when the Landlords decided to lease the premises to Atanacio,
they were aware that he intended to operate a medical marijuana
dispensary. Indeed, the lease agreement states that the unit the
Landlords leased to Atanacio shall only be used for such
purposes. Thus, there is evidence that the Landlords were aware
of the nature of the business Atanacio intended to operate on the
Plaza’s premises when they still had possession and control of the
premises where the shooting occurred. The Landlords, therefore,
had the opportunity to enter the premises that they decided to
lease to the House of OG and install adequate security measures
before transferring control and possession of the property to
19
Atanacio.10 (See Salinas v. Martin (2008) 166 Cal.App.4th 404,
414 [landlord will not be excepted from duty of care when he was
able to implement safety measures to prevent the plaintiff’s
injury before relinquishing possession and control of the property
to a tenant].)
In short, the court erred in finding the Landlords owed
Anthony no duty of care to ensure the dispensary’s premises were
equipped with a reinforced interior security door and a
commercial grade lock.
3.2. The Landlords did not owe a duty to refuse to
lease to, or a duty to evict, the dispensary.
The Parents also contend the Landlords owed a duty to
refuse to rent to the House of OG because it was illegal to operate
a marijuana dispensary in San Bernardino at the time of the
armed robbery and such businesses are inherently dangerous. In
contrast to a duty to impose minimally burdensome security
measures, the duty not to rent property to a specific tenant or to
later evict a potentially dangerous tenant requires a high degree
of foreseeability. (See Castaneda, supra, 41 Cal.4th at pp. 1219–
1220.) Generally, that requires the plaintiff to present evidence
that the landlords were aware that crimes similar to the one that
10 Although the court didn’t address the issue of breach, there is a
triable issue of fact as to whether the Landlords breached their duty to
Anthony to install a reinforced interior security door with a
commercial grade lock for a similar reason—i.e., despite having
knowledge of the type of business Atanacio intended to operate on
their property when they still had possession and control of it, they
failed to take reasonable steps to prevent a foreseeable type of harm.
(Kesner, supra, 1 Cal.5th at p. 1144 [unlike duty, breach is a question
of fact for the jury to decide].)
20
caused the plaintiff’s injury had targeted the business at issue to
render the plaintiff’s attack foreseeable. (See Sharon P. v.
Arman, Ltd. (1999) 21 Cal.4th 1181, 1195 (Sharon P.) [seven
armed robberies targeting bank that served parking garage
where plaintiff was later sexually assaulted did not render the
sexual assault sufficiently foreseeable to impose heightened
security measures].) That level of foreseeability was not present
here.
While the Parents submitted evidence of other violent
crimes occurring on the Plaza’s premises before the armed
robbery that led to Anthony’s death, it is undisputed that none of
those prior incidents involved the House of OG or any of the other
marijuana dispensaries that the Landlords had leased property
to in the past. Thus, the prior acts of violence on the Plaza’s
premises were not sufficiently similar to the armed robbery in
this case to trigger a duty to refuse to rent to, or to evict, the
House of OG.
Nor did the Parents establish that a medical marijuana
dispensary is such an “inherently dangerous” enterprise that the
presence of such a business always makes it foreseeable that
armed robberies are likely to occur. The designation of an
“ ‘inherently dangerous property’ ” is rare and “reserved for
properties that ‘regardless of their individual physical
characteristics and locations’ are by their nature, prone to
violence.” (Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1017
(Lopez).) Although the Parents presented evidence that local
municipalities, including the City of San Bernardino, had banned
medical marijuana dispensaries because other municipalities had
experienced an increase in violent crime that may be attributable
to the operation of such businesses, the Parents presented no
21
evidence that all marijuana dispensaries are dangerous
enterprises and prone to violent criminal attacks.11 (Ibid.
[plaintiff failed to present evidence that all bars or nightclubs,
even those operating in violation of the law, are “by their nature
prone to violent criminal attacks and are thus inherently
dangerous”].)
In short, the Parents didn’t establish that the Landlords
also owed a duty to refuse to rent to, or a duty to evict, the House
of OG.12
11Even if we were to assume that the court should have granted the
Parents’ request for judicial notice of the “White Paper,” that document
could only establish that marijuana dispensaries are sometimes
dangerous. It does not establish as a matter of law that all marijuana
dispensaries are inherently dangerous.
12 In their oppositions to the motions for summary judgment and on
appeal, the Parents contend the court should have presumed the
Landlords’ duty and breach under a theory of negligence per se
because the Landlords leased property to a type of business that was
prohibited from operating in San Bernardino. This argument lacks
merit. A plaintiff must assert a claim for negligence per se based on a
violation of a statute or ordinance in the operative complaint or he or
she must later move to amend the operative complaint to assert such a
claim. (Lopez, supra, 98 Cal.App.4th at p. 1019.) If the plaintiff fails to
do so, he or she “is precluded from relying on that theory as a basis for
seeking denial of summary judgment.” (Ibid.) Here, the Parents never
asserted a claim for negligence per se in their operative first amended
complaint, nor did they seek leave to amend that complaint to assert
such a claim. They therefore cannot claim the court erred in granting
summary judgment because the elements of duty and breach were
established under this theory.
22
4. There is a triable issue of fact as to whether the
Landlords’ conduct contributed to Anthony’s death.
The Parents also contend the court erred in finding, as a
matter of law, that the Landlords’ failure to provide more
effective security measures at the House of OG was not a cause
Anthony’s death. As we explain, there is a triable issue as to
whether the lack of a reinforced security door with a functioning
lock separating the dispensary’s lobby from the product room
contributed to Anthony’s death. As for the other security
measures proposed by the Parents, the court properly found there
was no triable issue as to whether the lack of such measures was
a contributing factor in Anthony’s death.
After establishing a defendant breached a legal duty, the
plaintiff must prove that breach was a cause of the plaintiff’s
injury. (Saelzer v. Advanced Group 400 (2001) 25 Cal.4th 763,
772 (Saelzer).) To do so, the plaintiff needs to establish that the
defendant’s negligence was a “substantial factor” in causing the
injury. (Ibid.; see also Sandoval v. Bank of America (2002) 94
Cal.App.4th 1378, 1385.) To be a “substantial factor,” the
defendant’s negligence need only have “contributed in some way
to the plaintiff’s injury.” (Sandoval, at p. 1384.) In other words,
the element of causation is satisfied if “ ‘but for’ the defendant’s
negligence the injury would not have been sustained.” (Ibid.)
As the California Supreme Court has explained, a plaintiff
must present “nonspeculative evidence” of a causal link between
the third-party conduct that injured the plaintiff and the
landlord’s “failure to provide adequate security measures.”
(Saelzer, supra, 25 Cal.4th at p. 774.) That means the plaintiff
must be able “to prove it was ‘more probable than not’ that
additional security precautions would have prevented the
23
attack.” (Id. at p. 776.) Generally, it is not enough to defeat
summary judgment by “simply criticiz[ing], through the
speculative testimony of supposed security ‘experts,’ the extent
and worth of the defendant’s security measures … .” (Id. at p.
774.) Instead, the plaintiff “must show the injury was actually
caused by the failure to provide greater security measures.”
(Ibid.)
As a preliminary matter, the Landlords met their initial
burden on summary judgment to negate the element of causation
by “point[ing] to the absence of evidence to support” the Parents’
claim that their omissions were a cause of Anthony’s death.
(Saelzer, supra, 25 Cal.4th at pp. 780–781.) The burden,
therefore, shifted to the Parents to produce evidence that would
establish a triable issue as to causation.
Here, the Parents presented evidence that would support a
finding that the Landlords’ failure to install an adequate security
door with a functioning lock between the dispensary’s lobby and
its product room was a substantial factor in causing Anthony’s
death. As we discussed above, the Parents submitted a police
report from the investigation of the shooting at the dispensary.
The officer who drafted the report noted that the lock on the
security door between the lobby and the product room wasn’t
working at the time of the shooting. Specifically, the officer noted
that even though the doorknob appeared to be in a locked
position, a person in the lobby could still push the door open to
access the product room where Anthony was working when he
was shot. In addition, two of the employees who were working at
the House of OG at the time of the shooting testified that
although customers weren’t supposed to be able to access the
product room from the lobby without being “buzzed in” through a
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remote locking mechanism, the intruders were able to force the
door open and enter the product room immediately before
shooting Anthony. This evidence supports an inference that but
for the Landlords’ failure to install a reinforced security door with
a commercial grade lock, the intruders wouldn’t have been able to
access the product room where they shot Anthony.
Indeed, this case presents a similar situation to the
hypothetical our Supreme Court posed in Saelzer to illustrate
when a causal link between a landlord’s failure to take adequate
steps to secure premises against foreseeable third-party crime
and a plaintiff’s injuries can be established with sufficient
certainty to support a claim for negligence. There, the court
explained that a plaintiff could establish the necessary causal
link by showing “the assailant took advantage of the defendant’s
lapse (such as a failure to keep a security gate in repair) in the
course of committing his attack, and that the omission was a
substantial factor in causing injury.” (Saelzer, supra, 25 Cal.4th
at p. 779; see also ibid. [“ ‘When an injury can be prevented by a
lock or a fence or a chain across a driveway or some other
physical device, a landowner’s failure to erect an appropriate
barrier can be the legal cause of an injury inflicted by the
negligent or criminal act of a third person.’ ”].) The Parents’
evidence supports a finding that such a scenario existed in this
case—i.e., that the Landlords’ failure to provide an adequate
barrier securing the area of the dispensary where Anthony was
working from the public’s entrance to the store contributed to
Anthony’s death.
The Parents failed, however, to create a triable issue as to
whether the Landlords’ failure to provide the other proposed
security measures—i.e., an additional security guard, working
25
interior and exterior security cameras, and a bulletproof
receptionist’s window between the dispensary’s lobby and product
room—were a substantial factor in causing Anthony’s death.
That is, the Parents didn’t present any “nonspeculative evidence”
that could establish a causal link between the absence of such
security measures and the fatal shooting in this case. (See
Saelzer, supra, 25 Cal.4th at p. 776.)
Even if we were to assume the court should have admitted
Petersen’s testimony addressing the issue of causation, that
testimony was nothing more than speculation as it related to the
other proposed security measures. That is, while Petersen
explained how the lack of a reinforced interior security door
contributed to Anthony’s death,13 he claimed only that the other
measures were “necessary.” Petersen didn’t point to any evidence
to support that conclusion, nor did he attempt to explain in any
detail how those other measures could have prevented Anthony’s
death. (Saelzer, supra, 25 Cal.4th at pp. 775–776 [“ ‘A mere
possibility of … causation is not enough; and when the matter
remains one of pure speculation or conjecture, or the probabilities
are at best evenly balanced, it becomes the duty of the court to
direct a verdict for the defendant.’ ”]; see also Sharon P., supra, 21
Cal.4th at pp. 1195–1196 [it is difficult to predict how an
increased presence of security guards, the installation of working
security cameras, or improved lighting would deter a specific
assault], disapproved on another ground in Reid, supra, 50
13The court excluded this testimony as speculative and lacking a
proper foundation. We need not decide whether that ruling was correct
because other evidence, which we discussed above, independently
created a triable issue of fact as to the issue of causation concerning
the lack of an adequate interior security door and lock.
26
Cal.4th at p. 527, fn. 5.) Because the Parents offered no evidence
independent of Petersen’s testimony that would support a finding
of a causal link between the shooting that caused Anthony’s
death and the Landlords’ failure to provide an additional security
guard, a bulletproof receptionist’s window, or working interior
and exterior security cameras, the court properly found there was
no triable issue on causation as to those measures.
DISPOSITION
The judgment is reversed and the matter is remanded for
further proceedings consistent with the views expressed in this
opinion. The Parents shall recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, Acting P. J.
WE CONCUR:
EGERTON, J.
WINDHAM, J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
27