Case Number: BC581880??? Hearing Date: February 06, 2017??? Dept: 98
ANGELO RIOS,
Plaintiff,
vs.
DHILLON FOODS, INC., et al.,
Defendants.
CASE NO: BC581880
[TENTATIVE] ORDER RE: DEFENDANT?S MOTION FOR SUMMARY JUDGMENT OR SUMMARY ADJUDICATIONDept. 98
1:30 p.m.
February 6, 2017
On May 13, 2015, Plaintiff Angelo Rios (?Plaintiff?) filed this action against Defendant Dhillon Foods, Inc. (?Defendant?) for alleged damages arising out of a March 6, 2015 stabbing assault by a third-party assailant in a Jack-in-the-Box restaurant. Plaintiff alleges causes of action for general negligence and premises liability. Defendant now moves for summary judgment or summary adjudication on the grounds that the criminal conduct of the third-party assailant was not reasonably foreseeable and Defendant did not owe a duty to protect Plaintiff.
In analyzing motions for summary judgment, courts must apply a three-step analysis: ?(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent?s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.? Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. Generally, ?the party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.? Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. When a defendant moves for summary judgment, he may point out ?that the plaintiff does not possess, and cannot reasonably obtain, evidence that would allow such a trier of fact to find any underlying material fact more likely than not.? Id., at 845.
On March 6, 2015, Plaintiff was stabbed by a homeless man, Dominique Martin, at a Jack-in-the-Box in Manhattan Beach, California. Undisputed Material Facts (?UMF?), No. 1. Prior to March 6, 2015, none of Defendant?s employees working on the day of the incident had seen Mr. Martin in the subject restaurant. UMF, No. 3. Mr. Martin had entered the restaurant in the morning, ordered food, and was escorted out at approximately 10:30 a.m. by the manager, Alejandro Rosales, after falling asleep at a table. UMF, No. 5. Mr. Martin left willingly and was not combative or aggressive. Id.
Mr. Martin returned to the restaurant at 13:56:14, ordered food, and took a seat in the restaurant. UMF, No. 7. Moises Morales, an employee who was on break at the time of the incident, was sitting at a table in the southeast corner of the restaurant. He saw Mr. Martin sitting at the table with his head down and assumed that Mr. Martin was sleeping. Deposition of Moises Morales, 34:14-17. When he woke up, Mr. Morales noticed that Mr. Martin was mumbling to himself but Mr. Martin did not appear intoxicated. Mr. Morales was not concerned by Mr. Martin. Id., 34:23-35:11.
At 14:08:31, Plaintiff was at the food counter ordering dessert. UMF, No. 8. Video surveillance shows that Mr. Martin walks towards Plaintiff at 14:08:41, appears to say something to him, turns and starts to walk away, and exits the frame at 14:08:55. Declaration of Mark W. Mooring, ? 10. At 14:09:09, Plaintiff turns to his right and adopts a defensive stance. Id. Mr. Martin reenters the frame and stabs Plaintiff at 14:09:14. Id. A total of approximately 33 seconds elapse from the time Mr. Martin first approaches Plaintiff to the time of the stabbing.
Ricardo Rincon, the employee taking Plaintiff?s order at the time, testified that Mr. Martin looked aggressive when he approached Plaintiff. Deposition of Ricardo Rincon, 46:13-24. He further testified that Mr. Martin appeared to be homeless and high on drugs. Id., 47:6-10, 49:2-5. When Mr. Martin approached Plaintiff, Mr. Rincon believed a fight would occur. Id., 48:7-9. Alejandro Rosales, general manager of the subject store, testified that the subject store experiences homeless people approximately once a week. Deposition of Alejandro Rosales, 43:17-44:1.
The elements of negligence are: 1) a duty owed to the plaintiff by the defendant; 2) a breach of that duty; 3) a causal connection between the breach and plaintiff?s injury; and 4) actual injury. Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 141. A landowner has a duty ?to take affirmative action to control the wrongful acts of third persons which threaten invitees where the [owner] has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.? Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 123. In determining the existence of a legal duty, foreseeability is a crucial factor. Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676 (disapproved on other grounds in Reid v. Google (2010) 50 Cal.4th 512). ?[T]he scope of the duty is determined in party by balancing the foreseeability of the harm against the burden of the duty to be imposed.? Id., at 678. In certain circumstances, restaurants owe a ?duty to take other reasonable and appropriate measures to protect patrons or invitees from imminent or ?ongoing? criminal conduct[,]? such as telephoning the police. Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 241.
Defendant argues that there is no evidence of any prior similar criminal activity or other indications that would have made the subject attack reasonably foreseeable, such that there was no duty to employ a security guard or to take similar measures. Defendant points to the fact that Mr. Martin left without incident on his first visit to the restaurant and was not acting aggressively during his second visit prior to the stabbing. Defendant further contends that its employees had no duty to intervene while the criminal conduct took place. Defendant seeks summary judgment or, in the alternative, summary adjudication of each of Plaintiff?s causes of action.
Plaintiff contends that Mr. Martin?s mumbling to himself prior to the incident was erratic behavior and that Defendant?s employees, who were under the impression that Mr. Martin was homeless and under the influence of drugs, should have undertaken some action to warn or prevent the assault. Plaintiff argues that disturbances involving transients at the subject store were frequent, such that Defendant knew or should have known that Mr. Martin was a foreseeable safety risk to others. Plaintiff further argues that Mr. Rincon should have asked Mr. Martin to leave the restaurant after Mr. Martin first approached Plaintiff, and the failure to do so was in violation of Defendant?s safety policy.
Plaintiff submits records produced by the Manhattan Beach Police Department regarding incidents at the subject restaurant. The records show that the location has had several incidents involving public intoxication and loitering. On May 2, 2012, there was a call regarding a homeless male in the parking lot. On December 13, 2012, there was a call regarding a female who was possibly homeless and yelling at customers. On March 26, 2013, there was another call regarding a female who appeared to be homeless. On March 3, 2014, a homeless male was panhandling in the drive-through area. None of the calls reflected in the records provided are related to a violent attack similar to the one underlying this matter.
In Delgado, supra, the plaintiff was attacked in a bar parking lot by a group of men. The plaintiff had been asked to leave the bar by a security guard of the bar who had observed the plaintiff and another patron exchanging hostile stares. The security guard had determined that a fight was imminent based on his past experience in the bar. The Delgado court held that, under the circumstances, it was reasonably foreseeable that an attack would occur between the plaintiff and the other patron and that the defendant bar owed a duty to take reasonable and minimally burdensome steps to address that imminent danger, such as escorting the plaintiff to his car or attempting to maintain separation between the two groups. Delgado, 36 Cal.4th at 246.
The Court finds that the attack on Plaintiff by Mr. Martin was not reasonably foreseeable and Defendant therefore owed no duty to Plaintiff. There is no evidence of prior similar attacks at the subject location that would have potentially required Defendant to undertake the burden of providing security guards. On the date of the incident, Mr. Martin had been asked to leave the restaurant and willingly complied without incident. Nothing about Mr. Martin?s first visit to the restaurant indicated that any attack by Mr. Martin was imminent. Though Mr. Martin was observed mumbling to himself during his second visit prior to the attack, this also does not demonstrate foreseeability. Unlike in Delgado, where the security guard?s experience led him to believe that the hostile staring by patrons was likely to lead to a fight, there is no evidence that Mr. Martin?s mumbling similarly indicated that an attack was likely.
Any indication that an attack was imminent came no earlier than 33 seconds prior to the attack, when Mr. Martin first approached Plaintiff aggressively. Under these circumstances, the Court finds that Defendant did not owe a duty to intervene in the attack. In Delgado, a fight seemed imminent but it could have been prevented if the defendant had escorted the plaintiff to his car or had otherwise hindered contact between the hostile patrons. Here, where the events unfolded so quickly, there was no reasonable steps Defendant could have taken to prevent the attack.
In light of the foregoing, Defendant?s Motion for Summary Judgment is GRANTED.
Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT98@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.
Dated this 6th day of February, 2017
Hon. Holly J. Fujie
Judge of the Superior Court