Opinion
B316334
04-21-2023
APEL KEUROGHLIAN et al., Plaintiffs and Appellants, v. THE GLEN DEVELOPMENT COMPANY, Defendant and Respondent.
Keosian Law and Natalie Hairabedian Suri for Plaintiffs and Appellants. Greenberg Glusker Fields Claman & Machtinger, Norman H. Levine and Lori L. Werderitch for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. 19STCV20688, Thomas D. Long, Judge. Affirmed.
Keosian Law and Natalie Hairabedian Suri for Plaintiffs and Appellants.
Greenberg Glusker Fields Claman & Machtinger, Norman H. Levine and Lori L. Werderitch for Defendant and Respondent.
ZUKIN, J. [*]
Plaintiffs initiated this negligence action against the owner of a shopping center after plaintiffs were assaulted and robbed at gunpoint in the center's parking lot. The trial court granted summary judgment in favor of defendant, finding that the third party criminal conduct was not reasonably foreseeable and therefore defendant owed no duty to plaintiffs. We agree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and respondent The Glen Development Company (defendant), owns The Glen Centre, a shopping center located at 2920-2964 Beverly Glen Circle in Los Angeles.
On November 16, 2018, at approximately 10:00 p.m., plaintiffs and appellants Apel Keuroghlian and Stephan Kasimian (collectively, plaintiffs) were assaulted and robbed by two unidentified assailants in the parking lot of The Glen Centre. Keuroghlian suffered severe injuries when he was hit in the head with a handgun and then placed in a headlock by one of the assailants. The assailants took plaintiffs' watches and Kasimian's keys to his vehicle.
Plaintiffs then filed a complaint against defendant asserting negligence and premises liability based on defendant's alleged failure to protect plaintiffs against foreseeable third party criminal conduct.
Defendant moved for summary judgment, contending there was no evidence of prior similar incidents that would give rise to a legal duty to take affirmative action to protect against this third party criminal conduct. Thus, defendant argued the incident was not reasonably foreseeable. In any event, defendant had no knowledge of any prior similar incidents and had appropriate security measures in place.
In support, defendant attached the declaration of Pamela Goldman, a member of the limited liability company that was defendant's general partner as well as defendant's manager since 2009. Goldman stated that she had no knowledge or record of any random, violent criminal acts against any person on The Glen Centre premises prior to November 16, 2018. She was only aware of a dispute in March 2015 between two tenants that resulted in one of the tenants calling the police. Goldman described the security measures in place in November 2018. The Glen Centre had on-site security guards from 11:00 p.m. until 7:00 a.m. and a valet parking guard (albeit not a trained security guard) until 11:00 p.m. The Glen Centre also had surveillance cameras in several locations and the parking lot was equipped with lighting that remained on until sunrise. In addition to the Goldman declaration, defendant attached plaintiffs' discovery responses that provided no evidence of prior similar acts.
When the surveillance cameras were reviewed after the November 16, 2018 incident, it was discovered that one had malfunctioned and had not captured any footage of the incident.
In opposition, plaintiffs contended prior similar incidents had occurred at, and near, The Glen Centre. Moreover, defendant should have employed adequate security personnel as it owed a duty to plaintiffs and other patrons on the premises. Lastly, the incident would not have occurred had there been security monitoring the parking lot. Plaintiffs primarily relied on the declaration of their private investigator, Zeke Unger, who described past criminal incidents at, and near, The Glen Centre. Plaintiffs requested the trial court deny the summary judgment motion or in the alternative, a continuance to complete an additional investigation and discovery of the prior criminal incidents highlighted in the Unger declaration. (Code Civ. Proc., § 437c, subd. (h).)
Code of Civil Procedure section 437c, subdivision (h) provides, in pertinent part, "[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment . . . that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just."
In its reply, defendant contended plaintiffs provided virtually no admissible evidence, including the Unger declaration. However, even if the Unger declaration was admissible, defendant argued the prior incidents are not similar in nature. Furthermore, there was no evidence that defendant had any knowledge of any prior criminal incidents occurring at The Glen Centre.
At the hearing on the motion, the trial court found the Unger declaration inadmissible and thus could not "be used to oppose the summary judgment." However, the court acknowledged that the declaration provided a basis to continue the hearing to allow plaintiffs to try to obtain admissible evidence concerning any prior criminal incidents. Therefore, the court continued the hearing and ordered supplemental briefing.
In a supplemental opposition, plaintiffs argued there were four prior similar criminal incidents at The Glen Centre. In support, plaintiffs attached declarations from two alleged victims (Mihaly Harisis and Halle Katheryn Arbaugh). Harisis stated that in February 2018, he was an employee of Starbucks when he was assaulted by a patron who threw a cup of iced coffee at him. Arbaugh stated that on April 14, 2018, someone broke into her vehicle in the parking lot and stole her laptop while she was at the grocery store. Plaintiffs also attached a declaration of another private investigator, Mark Mireles, who investigated prior criminal incidents at The Glen Centre. Mireles reported an incident of assault in the parking lot on December 15, 2017. The perpetrator was later charged with battery (Pen. Code, § 242), a misdemeanor. Lastly, plaintiffs attached Goldman's deposition transcript. Goldman discussed the March 2015 dispute between two tenants and stated that one tenant "pulled a gun" on the other.
In reply, defendant contended that while plaintiffs identified some prior criminal incidents occurred at The Glen Centre, such incidents were not similar in nature to the incident on November 16, 2018. Also, defendant had no knowledge of any prior criminal incident. In support, plaintiffs attached a supplemental declaration of Goldman. Goldman stated that she had no prior knowledge of any of the incidents described in the declarations of Harisis, Arbaugh, and Mireles.
At the continued hearing, the trial court granted the motion for summary judgment. The court found the prior incidents did not meet the heightened standard of showing violent criminal acts were reasonably foreseeable on the premises and thus, defendant did not owe plaintiffs a duty of care.
After judgment was entered, plaintiffs timely appealed.
DISCUSSION
Plaintiffs contend the trial court improperly concluded the third party criminal conduct was not reasonably foreseeable.
A. Standard of Review
"A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding." (§ 437c, subd. (a).) "The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (§ 437c, subd. (c).) The evidence supporting a defendant's motion can consist of "affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken." (§ 437c, subd. (b)(2).) A defendant moving for summary judgment is not required to "conclusively negate an element of the plaintiff's cause of action." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 (Aguilar).) However, the defendant must "present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence." (Id. at p. 854, fn. omitted.) "A defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action." (437c, subd. (p)(2).)
A reviewing court "must independently examine the record to determine whether triable issues of material fact exist." (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 (Saelzler).) In a de novo review evidence is viewed "in a light favorable to plaintiff as the losing party [citation], liberally construing her evidentiary submission while scrutinizing defendants' own showing, and resolving any evidentiary doubts or ambiguities in plaintiff's favor." (Id. at p. 768.) We do not, however, consider evidence submitted by the parties that the trial court properly excluded.
In this case, the trial court sustained defendant's objections to certain evidence submitted by plaintiffs in their opposition to the summary judgment motion. Plaintiffs have not sought review of any of the trial court's evidentiary rulings. Accordingly, we will not consider the evidence excluded by those rulings, and we will disregard any references to the excluded evidence contained in plaintiffs' brief. (Margaret W. v. Kelly R. (2006) 139 Cal.App.4th 141, 149, fn. 10; Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014-1015.) In addition, we decline to address defendant's challenge to an evidentiary ruling on appeal. As a general rule, a respondent who fails to file a cross-appeal cannot claim error in connection with the opposing party's appeal. (Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 665; Estate of Powell (2000) 83 Cal.App.4th 1434, 1439.)
B. Duty to Protect Against Third Party Criminal Conduct
The plaintiff in a negligence action must show that the defendant owed him or her a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of his or her injuries. (Saelzler, supra, 25 Cal.4th at p. 767, citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 (Ann M.), disapproved on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5.) The same foundational elements must be established for a cause of action for premises liability based on negligence. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)
The key element in this case is duty, the existence of which is a question of law. (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1188 (Sharon P.), disapproved on another ground in Reid v. Google, Inc. (2010) 50 Cal.4th 512, 527, fn. 5; Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819; Ann M., supra, 6 Cal.4th at p. 674.) In determining the existence of duty in the case of third party criminal conduct, foreseeability is a crucial factor. (Sharon P., supra, at p. 1188, citing Ann M., supra, at p. 676.) "'Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court.'" (Sharon P., supra, at p. 1188, quoting Ann M., supra, at p. 678.)
It is well established landowners are required to "maintain their premises in a reasonably safe condition, and . . . the general duty of maintenance includes '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.'" (Sharon P., supra, 21 Cal.4th at p. 1189, citing Ann M., supra, 6 Cal.4th at p. 674.) However, the "'duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated.'"(Sharon P., supra, at p. 1189, citing Ann M., supra, at p. 676.)
"In addition to foreseeability, other facts considered by courts in determining the existence and scope of a duty in a particular case include '"the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved."'" (Sharon P., supra, 21 Cal.4th at pp. 1189-1190, fn. 2; Ann M., supra, 6 Cal.4th at p. 675, fn. 5.) "These other factors may dictate against expanding the scope of a landowner's duty to include protecting against third party crime, even where there is sufficient evidence of foreseeability." (Sharon P., supra, at p. 1190, fn. 2.)
The foreseeability analysis has evolved over time. In Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112 (Isaacs), our Supreme Court held that foreseeability, for tort liability purposes, could be established despite the absence of prior similar incidents on the premises. The court explained that prior similar incidents are "helpful to determine foreseeability but they are not necessary." (Id. at p. 127.) Rather, foreseeability should be assessed in light of the "totality of the circumstances," including such factors as the nature, condition, and location of the premises. (Id. at pp. 127-129.) In Ann M., our Supreme Court revisited its prior decision in Isaacs and held that the requisite degree of foreseeability "rarely, if ever, can be proven in the absence of prior similar incidents of violent crime on the landowner's premises." (Ann M., supra, 6 Cal.4th at p. 679.) "To hold otherwise," the court explained, "would be to impose an unfair burden upon landlords and, in effect, would force landlords to become insurers of public safety, contrary to well-established policy in this state." (Ibid.)
In a footnote, our Supreme Court stated that "[i]t is possible that some other circumstances such as immediate proximity to a substantially similar business establishment that has experienced violent crimes on its premises could provide the requisite degree of foreseeability." (Id., fn. 7; Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 239-240, see Sharon P., supra, 21 Cal.4th at p. 1199 [the plaintiff must show the existence of prior similar incidents on the premises or other sufficiently serious "indications of a reasonably foreseeable risk of violent criminal assaults"].)
Here, plaintiffs provided evidence of four prior incidents at The Glen Centre: theft of a laptop from an unoccupied vehicle, an assault in the parking lot, an altercation between a customer and a Starbuck's employee, and a dispute between defendant's tenants involving one tenant "pulling a gun" on the other. Plaintiffs argue that these prior incidents were more than sufficient to require defendant to employ safety measures, including hiring additional security, in order to deter criminal activity.
We conclude none of these incidents rise to the level of satisfying the heightened foreseeability requirement necessary to impose a duty on defendant. (See Ann M., supra, 6 Cal.4th at p. 679 ["high degree of foreseeability is required in order to find that the scope of a landlord's duty of care includes the hiring of security guards"].) An armed robbery is not similar in nature to the prior incidents put forth by plaintiffs. The lack of evidence of prior incidents of armed robbery on the premises (or surrounding area for that matter) tends to also indicate the attack in the present case was possibly the first of its kind and as such was unforeseeable. We reject plaintiffs' assertion that the prior thefts crimes are violent in nature, akin to armed robbery. (See Pen. Code, § 667.5.)
Additionally, "foreseeability must be measured by what the defendant actually knew." (Margaret W. v. Kelly R., supra, 139 Cal.App.4th at p. 156, italics added; Ann M., supra, 6 Cal.4th at p. 679.) In her declaration, Goldman acknowledged that she was only aware of the March 2015 incident involving two of its tenants. And as previously stated, the tenant dispute is far different than an armed robbery. Goldman had denied knowledge of any random, violent criminal conduct on the premises. Plaintiffs provided no admissible evidence to the contrary. In fact, Goldman specifically stated she had no prior knowledge of the incidents described in the declarations of Harisis, Arbaugh, and Mireles. Plaintiffs' contention that defendant had "general knowledge" of prior criminal conduct is not sufficient to establish defendant owed a duty to plaintiffs. (Margaret W. v. Kelly R., supra, at p. 156 [no case has held that a defendant owed a duty to take steps to prevent third party criminal conduct "on the basis of constructive knowledge or information the defendant should have known"].) And contrary to plaintiffs' assertion, defendant has no obligation to independently investigate prior third party criminal conduct. (Ibid.)
We therefore conclude defendant was entitled to summary judgment as a matter of law.
In their reply brief, plaintiffs contend for the first time that defendant owed them a duty of care under the negligent undertaking doctrine. Plaintiffs have waived this argument. Plaintiffs have never before alleged defendant owed a duty of care under this theory of liability in opposing the summary judgment. "As a general rule, a party cannot raise a new theory of liability on appeal. [Citations.]" (Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1489.) Furthermore, on appeal, plaintiffs cannot properly raise this new theory in a reply brief. (Ibid.)
DISPOSITION
The judgment is affirmed. Defendant is awarded its costs on appeal.
We concur: CURREY, Acting P. J., COLLINS, J.
[*]Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.