Sculls v. Boardners CA2/5

Filed 9/13/22 Sculls v. Boardners CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
JONNY SCULLS, et al., B309933
Plaintiffs and Appellants, (Los Angeles County Super.
Ct. No. BC665786)
v.
BOARDNERS, INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Kristin S. Escalante, Judge. Affirmed.
Law Offices of Edward Y. Lee, Edward Y. Lee and Angela
S. Lee, for Plaintiffs and Appellants.
Freeman Mathis & Gary, Stephen M. Caine and Robert A.
Latham, for Defendant and Respondent.
__________________________
Plaintiffs Jonny and Lacey Sculls appeal after the trial
court granted summary judgment on their premises liability
claim against defendant Boardners, Inc. The Sculls argue the
trial court erred in concluding Boardners had no duty to provide
additional or more competent security guards at its nightclub
that could have prevented a brief physical altercation between
the Sculls and acquaintances. We affirm because the Sculls have
failed to show the existence of a triable, material issue of fact
that Boardners owed the Sculls a duty to protect against the
harm that occurred during the brief altercation.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Parties
Boardners is a corporation that owns a bar and nightclub in
Hollywood. The bar area has a capacity of 69; the nightclub area
can hold 408 people, including the upstairs, downstairs and patio.
For more than 20 years, Boardners has hosted a weekly Saturday
night event called Bar Sinister in its nightclub area.
Boardners employs security guards and stations some of
them at the entrance of the club and at a glass door that
separates the Boardners bar and restaurant from the nightclub;
other guards roam the venue. The security guards are
responsible for monitoring patron behavior. Boardners requires
its security guards to obtain “guard cards,” which involves annual
security guard training and certification. The owner of the club,
who only hires guards with experience, requests the guards
undergo their training with the Los Angeles Police Department.
All guards are instructed on Boardners’s current security guard
policies and procedures.
Plaintiffs Jonny Sculls, Lacey Sculls, and Erin Skold, and
defendants Tim Skold and Tiffany Lowe were regular patrons at
2
the club. Prior to the incident, the Sculls and Skolds had been
friendly acquaintances. They had been to each other’s homes for
social gatherings. Tiffany Lowe was a friend and colleague of the
Skolds. Lacey Sculls had been friends with Tiffany Lowe – she
had invited Tiffany to her bachelorette party. But it was also
undisputed that Lacey and Tiffany had had several verbal
conflicts over the years. There was, however, no history of
violence among any of the parties.
2. The Physical Altercation at Boardners
On Saturday, January 29, 2017, four security guards were
in the nightclub and one more in the main bar. At 2:00 a.m.,
Lacey and Jonny Sculls, Erin and Tim Skold, and Tiffany Lowe
were at Bar Sinister. The Skolds and Lowe occupied part of the
nightclub known as a VIP area, which was accessible to all
patrons and near an exit.1 Around 2 a.m., Tiffany Lowe
encountered Lacey Sculls near the VIP area, and they had a
minute-long argument before parting ways. About five to ten
minutes later, Jonny and Lacey Sculls walked into the VIP area.
Lacey and Tiffany had an argument that turned physical. Jonny
1 Earlier in the evening, the Skolds had been at another
nightclub with Lowe when they were approached by a Bar
Sinister representative and invited as “VIP guests” to Bar
Sinister.
The trial court summarized testimony from the Skolds:
“When the group arrived, they were escorted to what the Skolds
characterize as ‘the VIP area.’ Tim Skold appreciated being
seated in a VIP booth because he is a musician who is popular
with patrons of Bar Sinister and fans would sometimes intrude
on his group. The VIP area was not roped off but Erin [Skold]
testified that ‘everyone knew’ it was the VIP area. One of the
exits of the club is through the VIP area, so patrons were able to
walk through the area.”
3
Sculls, Tim Skold, and Erin Skold joined the physical altercation.
The Skolds and the Sculls disagree about who initiated the
incident. For our purposes, it matters not who did what to whom;
suffice it to say that there was pushing, shoving, hair pulling,
and falling to the ground. Punches may have been thrown.
The Skolds and Jonny Sculls testified that the entire
altercation (verbal and physical) lasted less than a minute.
Lacey Sculls was inconsistent in her statements concerning the
length of the altercation—estimating less than a minute to three
or four minutes. Security guards were not present in the VIP
area immediately prior to or during the altercation. The Sculls
then either left or were escorted out by security. Security later
escorted the Skolds’s party out a different exit.
3. Lawsuits Related to the Fight at Boardners
The Sculls sued Tiffany Lowe and Tim Skold for assault
and battery, and Boardners for premises liability in Los Angeles
Superior Court Case No. BC665786. The Sculls alleged that on
January 29, 2017 while at Bar Sinister, they were physically
attacked by Tiffany Lowe and Tim Skold, with resulting personal
injuries. The trial court’s August 27, 2020 minute order indicates
Tiffany Lowe is in default and the claims against Tim Skold have
been dismissed.2
In their complaint, the Sculls alleged Boardners “owed to
[p]laintiffs a duty to protect them from the tortious and/or
criminal acts of said [Boardners]’ own employees, agents, security
personnel and/or other third persons occurring on the [p]remises
by maintaining the [p]remises in a reasonably safe manner for
2 Tim Skold filed a cross-complaint, alleging that he was
injured in the altercation and that the Sculls were the aggressors.
The cross-complaint was also dismissed.
4
their intended purpose. [¶] . . . [Boardners] negligently
maintained, managed, controlled, promoted and operated the
[p]remises by failing to adequately train, supervise and/or control
the action of its agents, personnel and/or employees, resulting in
a failure to protect [p]laintiffs from an assault and battery.” The
complaint alleged that plaintiffs sustained injuries.
The Sculls claimed that Boardners “breached [its] duty of
care to [p]laintiffs by failing to properly employ security guards
or personnel to protect the safety of their customers despite
having reasonable cause to anticipate acts such as the ones
employed by [d]efendant Lowe and [d]efendant Skold and the
probability of injury resulting therefrom.” The Sculls asserted
that Boardners “knew or in the exercise of reasonable care should
have known that the acts such as the ones employed by
[d]efendants Lowe and Skold were reasonably anticipated to
occur,” and that Boardners “negligently failed to take steps to
either make the Premises safe or to warn [p]laintiffs about the
dangers.”
In a separate action (Case No. 19STCV03569) which was
consolidated in the trial court with the Sculls’s case, plaintiff
Erin Skold alleged she was injured in the altercation and
asserted claims for assault and battery against the Sculls and a
premises liability claim against Boardners.
4. Summary Judgment
On May 13, 2020, Boardners moved for summary
judgment, arguing it had no duty to protect the Sculls or Erin
Skold because Boardners could not have reasonably anticipated
an altercation among people who had an amicable relationship,
especially where the incident had lasted less than a minute.
Boardners argued nothing in the record suggested that the
5
parties had ever been involved in a previous physical altercation
with each other, and Jonny Skull and Tim Skold had testified
that “they had no bad blood with one another.” Boardners
explained, “The undisputed facts in the case show that the fight
lasted approximately 40 seconds from the time Tiffany and Lacey
started it until Tim and Jonny are getting helped up from the
ground. Tim Skold, who was only feet away from Tiffany and
Lacey at the time of the incident, testified that it was only five (5)
seconds, at most, between the time he heard yelling until he
ended up on the floor.” Boardners argued, “[T]here has not been
any evidence presented by any [p]laintiffs pointing out any
factual inadequacy of Boardners’ security or how it could ever be
liable to any of the [p]laintiffs under a premises liability theory.”
Boardners’s motion was supported by testimony from its
owner stating there had been no consistent pattern or history of
fighting at Bar Sinister.3 The owner’s deposition testimony
described the club’s security guard training, duties, and locations
in the club (as described above). Boardners also produced
deposition testimony from plaintiffs showing the amicable
relationship they had with those involved in the altercation.
Boardners attached video footage of the physical altercation
taken from a security camera overlooking the VIP area. The
video showed that the verbal and physical altercation was very
brief—less than a minute.
3 Boardners’s owner was asked in her deposition whether
there was “any history of rowdy behavior fights that start at Bar
Sinister events.” She responded that “it’s a bar so there’s all
sorts of exciting activity that happens at a bar.” She elaborated
that she was not aware of any “consistent history” of fights at the
bar and knew of no more than one or two incidents.
6
The Sculls and Erin Skold opposed the motion. We only
discuss the Sculls’s arguments as Erin Skold’s case is not at issue
on appeal. The Sculls argued that Boardners failed to stop the
fight as soon as possible after it started, and Boardners failed to
provide a staff adequate to police the premises. They asserted
these points were evidenced by testimony from the parties that
they did not observe or were unable to recall seeing security or
staff in the VIP area while they were there. The Sculls argued
that because Tim Skold was invited to Bar Sinister by a
Boardners employee while at another bar and because he arrived
intoxicated, “Boardners should have known that Tim, and
possibly others in his group, could become obstreperous.” Lastly,
the Sculls asserted Boardners failed to provide adequate security.
The trial court granted Boardners’s motion for summary
judgment against the Sculls (as well as Erin Skold). The court
explained its ruling in a 12-page order, stating in part:
“To the extent that the plaintiffs’ claims are based
on the allegation that Boardners should have
employed additional security guards, the Court
concludes that Boardners is entitled to judgment in
its favor. The Supreme Court has held, as a matter
of law, that requiring a bar owner to provide security
guards imposes a significant burden and therefore
the plaintiff must demonstrate a heightened degree
of foreseeability. [Citation.] An even higher degree
of foreseeability is required when defendant has
employed security guards but the plaintiff contends
that even more guards should have been hired.
Boardners, as the moving party, bears the initial
burden of affirmatively negating the issue of
7
heightened foreseeability or of showing that
plaintiffs do not have and cannot reasonably obtain
such evidence. The Court finds that Boardners has
[sic] its initial burden here. As previously noted,
Boardners presented evidence that it had provided
four security guards to cover the Bar Sinister event
and that there had only been one or two incidents
involving injuries in the last five years. The Delgado
[v. Trax Bar & Grill (2005) 36 Cal.4th 224 (Delgado)]
Court found that a record of ‘a few prior altercations
between patrons’ does not give rise degree of
heightened foreseeability that would require a bar to
provide additional security guards. (Delgado, supra,36 Cal.4th at 245).
“The burden thus shifted to the plaintiffs to raise a
triable issue of fact as to this issue, and specifically
evidence of prior similar incidents that could have
been avoided by more security guards. The plaintiffs
have provided no evidence regarding any prior
altercations at the bar involving any of Boardners’
patrons that would support a finding of heightened
level of foreseeability here. . . . Given the absence of
evidence of relevant prior altercations at the bar
that would support the need for additional security
guards, the plaintiffs have failed to raise a triable
issue of fact that Boardners owed a duty to supply
additional security guards.
8
“The Sculls and Erin Skold also argue that
Boardners should have intervened when the physical
altercation began. To meet its initial burden as to
this claim, Boardners focuses on the fact that the
entire incident was over within seconds or minutes.
The time estimates for the entire event - including
the verbal altercation leading up to the physical
fight - range from 30 to 40 seconds to 3 to 4 minutes.
Jonny Sculls estimated that the physical altercation
lasted about 20 seconds and that the entire incident,
including the verbal altercation between Lowe and
Lacey, lasted only about 40 seconds. Erin Skold
testified [the] altercation lasted about 40 seconds, or
less than a minute. Tim Skold estimated that the
physical altercation lasted only about 5 seconds.
Lacey Sculls is the only witness to provide a 3-to-4-
minute time estimate, and she admits that despite
the verbal insults, the physical attack by Tiffany
Lowe was ‘completely unexpected’ and thus
unforeseeable. All of the participants testified that
the altercation quickly resolved and that all
participants immediately left or were escorted by
security off the premises. The surveillance video
submitted supports the same conclusion. Further,
other than saying vaguely that Boardners’ security
should have intervened in the altercation, no party
identifies any specific action that Boardners could or
should have taken.
“[¶] . . . [¶]
9
“In short, given the lack of evidence that Boardners’
personnel had knowledge of aggressive or
obstreperous behavior, the plaintiffs have not
established a duty arising from allowing a person
who had become obstreperous and aggressive to
remain on the premises. The evidence shows that
when the physical altercation occurred, both sets of
patrons either left immediately or were immediately
escorted off the premises by security. There is no
evidence that Boardners’ had any information
regarding an imminent altercation prior to that
point.
“The Sculls and Erin Skold also suggest that the bar
should have ejected the others because members of
the group were visibly intoxicated. While the
evidence shows that Tim Skold, Lacey Sculls and
other members of the group had been drinking on
the night in question, the evidence is not sufficient to
raise a triable issue of fact that Boardners knew that
they were so intoxicated that they presented a
foreseeable risk of a physical altercation. As
previously discussed, the Sculls and the Skolds were
regulars at the bar. There never had been any
physical altercations involving them. There is no
evidence that the level of intoxication on the night in
question was unusual.”
10
The trial court entered judgment in favor of Boardners and
against the Sculls and Erin Skold on December 4, 2020.
Both the Sculls and Erin Skold filed timely notices of
appeal. Their appeals (respectively, appellate case numbers
B309933 and B310751) were consolidated on April 22, 2021. Erin
Skold did not file an opening brief and her appeal was dismissed
on October 25, 2021. Only the Sculls’ premises liability claim
against Boardners is at issue on appeal.
DISCUSSION
The Sculls argue they produced sufficient evidence to
establish a triable issue of fact as to whether Boardners employed
a sufficient number of or sufficiently competent security guards.
“On appeal after a motion for summary judgment has been
granted, we review the record de novo, considering all the
evidence set forth in the moving and opposition papers except
that to which objections have been made and sustained.
[Citation.] Under California’s traditional rules, we determine
with respect to each cause of action whether the defendant
seeking summary judgment has conclusively negated a necessary
element of the plaintiff's case, or has demonstrated that under no
hypothesis is there a material issue of fact that requires the
process of trial, such that the defendant is entitled to judgment
as a matter of law.” (Guz v. Bechtel National Inc. (2000) 24
Cal.4th 317, 334.)
1. Premises Liability and Employment of Security
Guards
“The elements of a negligence claim and a premises liability
claim are . . . a legal duty of care, breach of that duty, and
proximate cause resulting in injury.” (Kesner v. Superior Court
(2016) 1 Cal.5th 1132, 1158.) Although at times on appeal,
11
Boardners argues there was no breach of duty or proximate
cause, Boardners primarily argued the absence of duty in its
summary judgment motion. The Sculls’s opening brief – they
filed no reply brief – also addresses the three elements of
premises liability. Nonetheless, we frame our discussion in terms
of whether Boardners had a duty to protect plaintiffs from this
type of altercation as this was the basis for the motion and the
court’s ruling.4
The “existence of a legal duty is a question of law for the
court to determine [citation], that foreseeability is a ‘crucial
factor’ in determining the existence and scope of a legal duty
[citation], and that ‘[f]oreseeability, when analyzed to determine
the existence or scope of a duty, is a question of law to be decided
by the court . . . .’ ” (Delgado, supra, 36 Cal.4th at p. 237.)
There is a special relationship between business
proprietors, like bars, and their patrons such that “a proprietor’s
‘general duty of maintenance, which is owed to tenants and
patrons, . . . 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.’ ” (Delgado, supra, 36 Cal.4th at p. 235, italics
omitted.)
To assess whether the business proprietor owes a
particular duty, “the court in each case (whether trial or
appellate) [must] identify the specific action or actions the
plaintiff claims the defendant had a duty to undertake. ‘Only
after the scope of the duty under consideration is defined may a
4 As we briefly discuss below, our disposition of the appeal
would be the same even if it were founded on the breach of duty
or proximate cause elements.
12
court meaningfully undertake the balancing analysis of the risks
and burdens present in a given case to determine whether the
specific obligations should or should not be imposed on the
landlord.’ [Citation.] . . . . [T]he full analytical process [occurs]
this way: ‘First, the court must determine the specific measures
the plaintiff asserts the defendant should have taken to prevent
the harm. This frames the issue for the court’s determination by
defining the scope of the duty under consideration. Second, the
court must analyze how financially and socially burdensome
these proposed measures would be to a landlord, which measures
could range from minimally burdensome to significantly
burdensome under the facts of the case. Third, the court must
identify the nature of the third party conduct that the plaintiff
claims could have been prevented had the landlord taken the
proposed measures, and assess how foreseeable (on a continuum
from a mere possibility to a reasonable probability) it was that
this conduct would occur. Once the burden and foreseeability
have been independently assessed, they can be compared in
determining the scope of the duty the court imposes on a given
defendant. The more certain the likelihood of harm, the higher
the burden a court will impose on a landlord to prevent it; the
less foreseeable the harm, the lower the burden a court will place
on a landlord.’ ” (Castaneda v. Olsher (2007) 41 Cal.4th 1205,
1214.)
When a plaintiff claims a business proprietor had a duty to
provide security guards, or in this instance more security guards,
the plaintiff’s burden is great: “only when ‘heightened’
foreseeability of third party criminal activity on the premises
exists—shown by prior similar incidents or other indications of a
reasonably foreseeable risk of violent criminal assaults in that
13
location—does the scope of a business proprietor’s special-
relationship-based duty include an obligation to provide guards to
protect the safety of patrons.” (Delgado, supra, 36 Cal.4th at
p. 240, italics omitted.)
2. The Sculls Failed to Show Boardners Had a Duty to
Employ Additional Security Guards
The Sculls argued that Boardners should have hired
additional security guards. Such a security measure is, under
the authorities cited, considered particularly burdensome on the
proprietor, and requires a heightened degree of foreseeability of
criminal activity on the premises. (Delgado, supra, 36 Cal.4th at
p. 240.) Thus, the Sculls were required to show a high likelihood
that additional security guards were necessary to protect against
altercations of this sort.
In its summary judgment papers, Boardners demonstrated
that physical altercations were not foreseeable, as there had been
only a handful of undefined incidents in the past. Boardners
employed four trained and certified security guards at different
locations within the club. In support of its argument that this
type of physical altercation was not foreseeable, Boardners
pointed to the fact the Sculls, Skolds, and Lowe were friendly and
had no history of violent altercations among themselves or at Bar
Sinister. Lacey Scull admitted the violence was unexpected, and
the parties generally stated the physical fight ended very quickly.
There is no evidence whatsoever that Boardners knew of
aggressive behavior among the parties prior to the incident. Any
speculation that Boardners could have anticipated the altercation
or that additional security guards would have prevented any
injuries was just that—speculation. (C.f. Delgado, supra, 36
Cal.4th at p. 250 [the court found there was a duty to protect
14
plaintiff where the security guard was aware there was an
impending fight and directed plaintiff to leave bar but failed to
escort plaintiff to his car or to coordinate with the outside
security guard to keep the assailant and his fellow gang members
away from plaintiff].)
The undisputed evidence was that the nightclub itself had
no history of fights (only one or two incidents). Appellants
pointed to nothing in Boardners’s history that would reasonably
indicate the need for additional security. In Delgado, our
Supreme Court explained, “few prior altercations between
patrons . . . [are] insufficient evidence of heightened
foreseeability in the form of prior similar incidents or other
indications of a reasonably foreseeable risk of a violent criminal
assault on defendant’s premises that would have imposed upon
defendant an obligation to provide any guard, or additional
guards, to protect against third party assaults.” (Delgado, supra,
36 Cal.4th at p. 245.)
Boardners’s evidence satisfied its prima facie obligation to
show it was entitled to judgment as a matter of law, and shifted
the burden to the Sculls to show that the premises were
foreseeably unsafe without additional security guards. The
Sculls produced no such evidence. As an example, no expert
testified on the number of security guards typically employed in
comparable establishments or that additional security guards
would have prevented any foreseeable harm.
The Sculls were loud and clear in their briefing that more
guards would have prevented the disturbance, counsel’s
insistence was just that – insistence, without supporting
evidence. For example, the Sculls argue that because Boardner’s
property is large and on average 350 guests enter and leave Bar
15
Sinister throughout the night, four security guards were
insufficient. But the Sculls offered no evidence on the number of
guests on the premises at the time of the altercation or the
reasonable ratio of guards to patrons based on the type of
establishment and any prior history of violence.5
We conclude, as a matter of law, that the evidence failed to
show that Boardners had a duty to hire additional security
guards.
3. Plaintiffs Failed to Show Boardners Owed the Sculls
a Duty to Employ “More Competent” Security
Guards
The Sculls argue on appeal that Boardners also had a duty
to provide security guards who were more competent than the
ones employed that evening. In its summary judgment papers,
Boardners produced evidence that it required its security guards
to have “guard cards,” obtained through yearly training and
certification. The owner testified that Boardners only hired
experienced security guards, and requested the guards to
undergo training with the Los Angeles Police Department. All
guards were instructed on Boardners’s current security guard
policies and procedures. We agree with the trial court that in
producing this evidence, Boardners satisfied its burden to show
its guards were competent, shifting the burden to the Sculls.
5 The Sculls rely on the testimony of Boardners’s owner that
“it’s a bar so there’s all sorts of exciting activity that happens at a
bar.” This evidence is insufficient on its own to meet the Sculls’s
burden. The vagaries of “exciting activity” aside, Boardners’s
owner explained she was not aware of any “consistent history” of
fights at the bar.
16
Again, the Sculls produced no evidence and emphatic assertions
without supporting evidence do not suffice.
There was no evidence that the Boardners’s security guards
were not competent or what additional training was necessary for
them to achieve the level of competency the Sculls believed was
legally required. The Sculls argue that “guard cards” do not show
competency, but that assertion reverses the summary judgment
burden – they offered no evidence of incompetency or how
training would have prevented the altercation. The Sculls assert
that lack of competency was illustrated by their absence from the
VIP area vicinity when the physical alteration occurred. The
Sculls rhetorically ask: “What were the security guards doing?
Were they socializing with each other and not performing their
required job functions? Were they patrolling the entire venue or
just stationed in certain areas?” Rhetorical questions are no
substitute for evidence.
DISPOSITION
The judgment is affirmed. Defendant and respondent
Boardners, Inc. shall recover its costs on appeal.
RUBIN, P. J.
WE CONCUR:
BAKER, J. KIM, J.
17
Jonny Sculls et al. v. Boardners, Inc.
B309933
BAKER, J., Concurring
I find it difficult in a case like this to fully square our
Supreme Court’s mode of analysis in Delgado v. Trax Bar & Grill
(2005) 36 Cal.4th 224 (Delgado) with the Court’s more recent
guidance that a duty analysis must be conducted at a sufficiently
high level of generality. (See, e.g., Brown v. USA Taekwondo
(2021) 11 Cal.5th 204, 221; Vasilenko v. Grace Family Church
(2017) 3 Cal.5th 1077, 1084 [“Breach, injury, and causation must
be demonstrated on the basis of facts adduced at trial, and a
jury’s determination of each must take into account the
particular context in which any act or injury occurred. Analysis
of duty occurs at a higher level of generality”]; Cabral v. Ralphs
Grocery Co. (2011) 51 Cal.4th 764, 774.) But today’s opinion for
the court faithfully applies Delgado on notably similar facts, and
I have signed the opinion for that reason.
BAKER, J.