Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. SCVSS145226. Donald R. Alvarez, Judge.
Law Offices of Sandor C. Fuchs, Sandor C. Fuchs; Law Offices of James S. Miller, James S. Miller; and Evan D. Marshall for Plaintiff and Appellant.
Bradley & Gmelich, Barry A. Bradley and Shirley R. Sullinger for Defendant and Respondent.
OPINION
MILLER J.
Antonio Steward (Steward) and his parents sued Stratus Security Services, Inc. (Stratus) for negligence. The trial court granted summary judgment in favor of Stratus. (Code Civ. Proc. § 437c.) Steward contends that the trial court erred (1) because he presented triable issues of fact; (2) because Stratus failed to meet its burden of proof; (3) by granting various evidentiary objections; and (4) by denying Steward leave to amend the complaint. We reverse the judgment.
The first cause of action is titled “Negligence; By Plaintiffs Against All Defendants.” The cause of action appears to allege multiple wrongful acts, such as (1) plain negligence; (2) negligent hiring and supervision; and (3) negligent infliction of emotional distress.
FACTUAL AND PROCEDURAL HISTORY
Cannon Management (Cannon) managed the Aventerra Apartments (Aventerra), in Fontana. Cannon hired Stratus to provide security services at Aventerra. Cannon did not permit parties at Aventerra. Quiet hours at the apartment complex were from 10:00 p.m. until 9:00 a.m.
On August 26, 2006, a Stratus security guard was on patrol at Aventerra. At 12:30 a.m., while the guard was making his rounds, he saw a group of eight to ten men near the rear of the complex. The men ranged in age from 18 to 35 years old. The men were talking, drinking, and listening to music. The security guard described the scene as follows: “If you’d have been there, you wouldn’t have wanted to be there. I didn’t want to be there.” When asked if there was anything in particular about the group of men that made the security guard uncomfortable, the guard responded, “[I]t was about 10 of them and one of me... [¶]... [¶]... It was just a situation I didn’t want to be in.”
As the guard observed the group of men, one of the men approached the security guard. The security guard told the man that someone complained about the noise the group was making. When the guard finished talking to the man, the guard walked away. The guard “assumed... he would go... and they would take care of it.” As the guard walked away, he heard the volume of the music go down. The guard walked towards his car. While walking towards his car, the guard saw Steward and two of his friends sitting on the stairs in the apartment complex’s courtyard area. The guard entered his car, rolled up the windows, and began writing his “Daily Activity Report.”
Several minutes later, the group of 10 men approached Steward and his two friends. Steward was 17 years old, and he and his family lived in Aventerra. Steward and his friends were sitting down talking. As the group of men approached, Steward saw the men passing a bottle between them. One of the men, Roosevelt Turner (Turner), walked up to Steward. Steward had a cigarette tucked behind his left ear, and Turner said to Steward, “‘Gimme your cigarette.’” Steward responded, “‘It’s my last one. I’ll share it with you.’” Turner then asked Steward, “‘Do you gang bang?’” Steward responded, “‘No.’” Turner said, “‘Well, it looks like you [do].’” Turner then reached for the cigarette tucked behind Steward’s ear. Steward moved his head, and asked “‘What’s up?’” Turner and the group of men walked away from Steward.
When Turner was approximately 14 feet away from Steward, he pulled out a gun, said “‘That’s what’s up!’” and began shooting. Steward was unable to get away from the shots, because the first shot hit him. Steward was shot a total of “[e]ight or nine times.” Steward fell to the ground and screamed. Police were dispatched to the apartment complex in response to the shooting, at 12:40 a.m.-approximately 10 minutes after the security guard left the group of men.
Steward was in the hospital for approximately six months. After two months in the hospital, both of Steward’s legs were amputated due to gangrene. The gangrene was caused by the lack of blood circulating to Steward’s legs due to the gunshot wounds.
DISCUSSION
A. NEGLIGENCE
Steward contends that the trial court erred by granting summary judgment, because he raised triable issues of fact regarding duty, breach, and causation. We agree.
“In order to establish liability on a negligence theory, a plaintiff must prove duty, breach, causation, and damages. [Citation.]” (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1250.) “A trial court properly grants summary judgment where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. [Citation.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.) “We review the trial court’s decision de novo, liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party. [Citation.]” (State v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017-1018.) However, we disregard the evidence to which objections have been made and properly sustained. (Villanueva v. City of Colton (2008) 160 Cal.App.4th 1188, 1194 [Fourth Dist., Div. Two].)
1. DUTY
a) Special Relationship
We begin by analyzing the element of duty. “[T]he existence and scope of a defendant’s duty is an issue of law, to be decided by a court not a jury. [Citation.]” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.) “As a general matter there is no duty to act to protect others from the conduct of third parties. [Citation.] One exception to that general rule is found in the ‘special relationship’ doctrine. A defendant may owe an affirmative duty to protect another from the conduct of third parties, or to assist another who has been attacked by third parties, if he or she has a ‘special relationship’ with the other person. [Citations.]” (Morris v. De La Torre (2005) 36 Cal.4th 260, 269.) “A special relationship may... arise out of a statutory duty or a contractual duty. [Citation.]” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1203; Alexandria S. v. Pacific Fertility Medical Center, Inc. (1997) 55 Cal.App.4th 110, 116.) “If a special relationship arises out of a contractual duty, [then] the duty is owed not only to the parties to the contract but also to those persons intended to be benefited by the performance of the contract. [Citation.]” (Seo, at p. 1203.)
We were unable to find a written contract in the record, and, at oral argument, the parties stated that there was not an express written agreement between Cannon and Stratus. In Steward’s opening brief, he writes, “Cannon’s agreement with Stratus... provided for only a single unarmed guard.” The point heading following that statement reads, “‘House Rules’ and Patrol Practices.” We infer from Steward’s use of the terms “agreement” and “patrol practices” that it is Steward’s position that an implied contract existed, the terms of which can be artificially constructed by looking at the parties’ courses of conduct. (See Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th 880, 889 [discussing implied contracts].) Consequently, we examine whether there is evidence supporting a finding that an implied contract existed, which was intended to benefit Steward.
Statutory law defines an implied contract as “one, the existence and terms of which are manifested by conduct.” (Civ. Code, § 1621.) In other words, an implied contract, like an express contract, consists of obligations arising from a mutual agreement and intent to promise; however, in an implied contract the agreement and promise are determined by the parties’ actions. (Division of Labor Law Enforcement v. Transpacific Transportation Co. (1977) 69 Cal.App.3d 268, 275.)
The record reflects that either C.F. Aventerra, L.P. or Cannon paid Stratus approximately $3,000 per month for patrol services from May 2005 through August 2006. Darrell Hill, the Stratus security guard, testified that he patrolled Aventerra in August 2006. In Stratus’s response to a demand for inspection of documents, Stratus admitted that it provided security services for Aventerra. The foregoing evidence reflects that Stratus provided patrol services at Aventerra in exchange for $3,000 per month. As a result of this exchange of obligations and promises, we conclude that an implied contract existed between Stratus and either Cannon or C.F. Aventerra, L.P.
Now that we have concluded that an implied contract existed, we examine whether a trier of fact could find that a special relationship arose out of the contractual duty. The special relationship exception was applied to security guards in Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 199-200 (Marois). In Marois, the appellate court held, “By contracting with [a] business to provide security services, the security guard creates a special relationship between himself and the business’s customers. This relationship, in and of itself, is sufficient to impose on the guard the obligation to act affirmatively to protect such customers while they are on the business premises. [Citations.]” (Id. at p. 200, fn. omitted; see also Elizarraras v. L.A. Private Security Services, Inc. (2003) 108 Cal.App.4th 237, 241-242 [discussing security guards and the special relationship exception]; see also Trujillo v. G.A. Enterprises (1995) 36 Cal.App.4th 1105, 1108-1109 [same].)
Cannon or C.F. Aventerra, L.P. contracted with Stratus to provide security guards at Aventerra. As set forth by Marois, a contract to provide security services creates a special relationship between a security guard company and a business’s customers. Steward was a resident of Aventerra, and therefore, as a “customer” of the apartment complex, he was a person intended to be benefited by the performance of Stratus’s contract. By virtue of this special relationship, Stratus had an affirmative duty to protect Steward while Steward was at the apartment complex.
b) Scope of the Duty
Now that we have concluded that the contractual relationship imposed a duty on Stratus, we must determine the scope of the duty.
Within every contract there is an implied duty to perform the agreed upon act with care and skill. (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 774.) Consequently, as a general rule, when a person or company contracts to perform security work, then the security guard must act as would a reasonable security guard under similar circumstances. (Balard v. Bassman Event Security, Inc. (1989) 210 Cal.App.3d 243, 249, citing Marois, supra, 162 Cal.App.3d at pp. 199-200.) However, we note that the scope of a security guard’s duty may be expanded or limited based upon the terms of a contract. (Putnam v. Village of Bensenville (2003) 337 Ill.App.3d 197, 208-209.) It appears from the record that Stratus’s guards enforced the rules of Aventerra by confronting offenders, patrolling the grounds, and writing daily reports. In other words, Stratus’s guards performed typical security work. We are unable to find anything in the record indicating that the implied contract contained terms modifying the scope of Stratus’s general duty to act in the manner of a reasonable security guard. Accordingly, we conclude that the scope of Stratus’s duty extended to acting in the manner of a reasonable security guard under similar circumstances.
2. BREACH
Next, we determine whether a triable issue of fact has been presented regarding the element of breach. A security guard breaches his duty when he fails to act “as would a reasonable security guard under similar circumstances.” (Marois, supra, 162 Cal.App.3d at pp. 199-200.) Accordingly, we must determine whether there is evidence that Stratus’s security guard did not act in the manner of a reasonable security guard.
A security expert, R. Bruce Ramm, declared that the Stratus security guard should have (1) required that Steward and his friends return to Steward’s apartment, when he saw them sitting outside, because they were violating the curfew; (2) asked the group of 10 men if they lived in the apartment complex, in order to determine if they were residents, visitors, or trespassers; (3) watched the group of men until they were inside an apartment or left the premises; and/or (4) contacted the police about the group of men. The security expert also declared that since parties were not permitted at the apartment complex, the group of men should have been advised to leave the premises. A trier of fact could infer from the security expert’s declaration that a reasonable security guard under similar circumstances would have performed one or more of the four actions listed ante, because the security expert had over 35 years of experience in the security field.
The record reflects the Stratus security guard observed the group of men. One of the men approached the security guard. The security guard told the man that a noise complaint had been made. After speaking to the man, the guard left, and he could hear the volume of the music going down as he walked away. The security guard walked to his car, rolled up the windows, and began writing his “Daily Activity Report.”
The security guard did not ask the men if they resided in the complex; he did not try to break-up the party; he did not stay to watch if the men went inside an apartment; he did not escort the men off the property, or watch them leave the property; and he did not contact the police. Based upon the foregoing evidence, we conclude that a triable issue of fact exists regarding whether Stratus breached its duty to act in the manner of a reasonable security guard, because there is evidence that the Stratus security guard’s actions did not comport with the actions of a reasonable security guard.
At oral argument, Stratus asserted that this court misrepresented the facts, because in a deposition, the Stratus security guard stated that he observed the men starting to return to the apartment. We disagree with Stratus’s assertion. As set forth ante, when an appellate court reviews a ruling on a motion for summary judgment, the appellate court looks at the evidence in the light most favorable to the plaintiff. (State v. Allstate Ins. Co., supra, 45 Cal.4th at pp. 1017-1018.) At one point in the Stratus security guard’s deposition, he stated that he “actually observed [the men] starting to [go] back into the apartment.” However, at another point in the guard’s deposition he testified, “It looked like [the men] were headed back inside the house. And then I walked back down the driveway.” Based upon this latter portion of the guard’s testimony, a trier of fact could infer that the guard did not stay to watch if the men went inside the apartment, because he could not say that the men did go inside the apartment, only that it “looked liked” the men were headed inside the apartment. Accordingly, we disagree that we have misrepresented the facts, because we are presenting the facts in the light most favorable to Steward.
The dissent concludes that Stratus did not breach a duty owed to Steward. We want to clarify, in light of the dissent, that it is not our opinion that Stratus did, as a matter of law, breach the duty owed to Steward; rather, it is our opinion that a trier of fact should decide whether Stratus breached the duty owed to Steward.
Stratus contends that a triable issue of fact regarding the element of breach does not exist because evidence of an imminent danger was not presented. Contrary to Stratus’s position, the question is not whether an imminent danger was presented, but whether the security guard acted in the manner of a reasonable security guard. (Marois, supra, 162 Cal.App.3d at pp. 199-200.) Consequently, we find Stratus’s argument unpersuasive.
3. CAUSATION
Next, we examine whether a triable issue of fact exists concerning the element of causation. We conclude that a triable issue of fact does exist.
“An actor may be liable if the actor’s negligence is a substantial factor in causing an injury, and the actor is not relieved of liability because of the intervening act of a third person if [the] act was reasonably foreseeable at the time of the original negligent conduct. [Citation.] ‘The foreseeability required is of the risk of harm, not of the particular intervening act.’ [Citation.]” (Anaya v. Superior Court (2000) 78 Cal.App.4th 971, 973; see also Rosh v. Cave Imaging Systems, Inc. (1994) 26 Cal.App.4th 1225, 1235.)
a) Substantial Factor
We begin our causation analysis by examining whether a jury could find that Stratus’s negligence was a substantial factor in causing Steward’s injuries. A report from the Fontana Police Department reflects that police were dispatched to Aventerra at 12:40 a.m., in response to the shooting. The police report further reflects that the Stratus security guard told the police that he spoke to the group of 10 men at 12:30 a.m. The security guard told the police that the men were drinking, playing loud music, and that a noise complaint had been made. As the security guard walked away from the group of men, he saw Steward and Steward’s two friends sitting in the location where Steward was shot.
A jury could find that the security guard’s failure to act in the manner of a reasonable security guard was a substantial factor in Steward being shot, due to the short time period-10 minutes-between the guard speaking to the group of men and Steward being shot. The jury could infer that if the security guard had stopped the party, escorted the men off the property, and/or contacted the police, then the shooter would not have harassed Steward for his cigarette and shot him for failing to relinquish it. Accordingly, in light of the short time frame between the guard speaking to the group and the shooting, we conclude that a trier of fact could reasonably find that Stratus’s negligence was a substantial factor in causing Steward’s injuries.
We find support for our conclusion in Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284 (Mukthar). In Mukthar, a convenience store employee blocked the store’s exit in an attempt to stop three people from shoplifting. (Id. at pp. 286-287.) Two of the shoplifters “rushed” at the employee, and the third shoplifter struck the employee’s eye. (Id. at p. 287.) The employee claimed that he was temporarily totally disabled by the injuries sustained during the battery. Latin American Security Service, Inc. (Security Service) had been hired to provide security at the convenience store; however, a guard was not present at the time of the incident. (Ibid.) Security Service moved for summary judgment, and argued that the store employee could not show that Security Service’s negligence was the cause of the assault. (Id. at p. 286.) The trial court granted the motion. (Id. at p. 288.) The appellate court reversed. (Id. at p. 286.)
The appellate court focused on whether there was evidence that the assault would not have occurred if the guard had been present, i.e., whether Security Service’s failure to exercise reasonable care resulted in the employee’s injuries. (Mukthar, supra, 139 Cal.App.4th at p. 291.) The appellate court noted that the security guard was supposed to stand next to the door that the employee blocked. The appellate court concluded that it was “more likely than not” that the shoplifter would not have struck the employee if an armed guard had been standing next to the doorway. (Ibid.) Accordingly, the appellate court concluded that it would not be conjecture for a trier of fact to find that the security guard could have prevented the assault, because a reasonable inference could be drawn from the evidence. (Ibid.)
We find Mukthar to be supportive of our conclusion, because in the instant case a trier of fact could reasonably infer that if the security guard had escorted the men off of the property or watched them enter the apartment, then the shooting would not have occurred. Similar to the Mukthar court, we are not concluding that this inference is correct, rather, we are concluding that it would not be speculation for a jury to make such a finding, because a reasonable inference can be drawn from the evidence.
Stratus argues that a trier of fact could only speculate that the security guard could have prevented the shooting. Stratus asserts that if the security guard had watched the men enter an apartment, then the men could have exited the apartment when the security guard left, and then shot Steward. Further, Stratus asserts that if the security guard had watched the men leave the complex, then Steward could have still been shot while the security guard watched.
As we have explained ante, a trier of fact could reasonably conclude that the security guard’s failure to (1) assess which men, if any, were residents; (2) stop the party; (3) escort the loiterers off the property; and/or (4) contact the police, at 12:30 a.m., was a substantial factor in Steward being shot at 12:40 a.m. Consequently, we conclude that there is a triable issue of fact on the element of causation.
Stratus contends that there is not a triable issue on the element of causation because there is no evidence that the group seen by the security guard is the same group that approached Steward. The security guard described the group of men he saw at 12:30 a.m. as eight to ten black males, ranging in age from 18 to 35; all the men were wearing baggy clothing, and they were drinking. The group of men that approached Steward slightly before 12:40 a.m. were described as approximately 10 black males, “a little bit older” than Steward, who was 17, and they were passing a bottle between them. Turner was described as wearing “baggie clothes.” Given the 10 minute time frame and similar descriptions, a trier of fact could reasonably infer that the group seen by the security guard was the same group that approached Steward. Consequently, we find Stratus’s argument unpersuasive.
b) Foreseeability
Next, we analyze whether a trier of fact could conclude that Stratus should not be relieved of liability-as a result of Turner’s intervening act of shooting Steward-because the risk of the shooting was foreseeable.
The regional manager for Cannon, who was in charge of Aventerra, testified that Cannon “took over” Aventerra in 2003. One week prior to Cannon taking control of the Aventerra, there was a shooting in the complex’s parking lot. Also prior to Cannon managing Aventerra, there had been prostitution, drug use, thefts, and loitering at the complex.
The Stratus security guard saw a group of approximately 10 men talking and drinking in front of an apartment. The security guard could not hear the men’s conversation because there was loud music playing. The security guard said the following when describing the group: “Let me say this: If you’d have been there, you wouldn’t have wanted to be there. I didn’t want to be there.” When the security guard was asked if there was a reason he felt uncomfortable, he explained, “The fact that, like I said, it was about 10 of them and one of me.” The security guard then said, “It was just a situation I didn’t want to be in.”
As the security guard observed the group, one of the men from the group approached the security guard. The security guard explained to the man that a noise complaint had been made; when the guard finished speaking to the man, the guard left. As the guard walked away, he could hear the volume of the music going down, and he saw Steward and his friends sitting in the area where Steward was shot. The security guard walked to his car, rolled up the windows, and began writing his “Daily Activity Report.” The security guard was not present at the complex when Steward was shot; however, when the security guard spoke to the police that night, he told the police about the group of men that had been gathered at the complex, “[b]ecause [he] had a feeling that it might have been related.”
Based upon the security guard’s comments that he did not want to interact with the group of men, a jury could infer that criminal conduct was foreseeable. The guard’s statement that he was uncomfortable because there were 10 men and “one of [him]” further supports an inference that the guard foresaw the group engaging in violent criminal conduct. Further, from the security guard’s testimony that he saw Steward sitting outside, the jury could infer that Steward was a foreseeable victim of the criminal conduct. In sum, based upon the evidence, a trier of fact could conclude that violent criminal conduct involving Steward was foreseeable.
The dissent notes that even if Stratus did breach the duty owed to Steward, then Steward’s appeal would fail because the harm was not foreseeable. In light of the dissent, we want to clarify that it is not our opinion that the harm to Steward was foreseeable as a matter of law; rather, it is our opinion that a trier of fact should decide whether the harm to Steward was foreseeable.
4. CONCLUSION
In sum, Stratus owed a duty to Steward. Whether the security guard acted reasonably under the circumstances and whether his acts were a cause of Steward’s injuries are questions of fact to be resolved by trial, not summary judgment. (See Trujillo v. G.A. Enterprises, supra, 36 Cal.App.4th at p. 1109 [similar conclusion]; see also Marois, supra, 162 Cal.App.3d at p. 202 [same].)
B. NEGLIGENT HIRING, TRAINING AND SUPERVISION
We briefly address Steward’s contention that the trial court erred by granting summary judgment because Stratus did not address Steward’s claim of negligent hiring, training, and supervision. We disagree with Steward’s contention.
Liability for negligent hiring, training, and supervision “‘is limited by basic principles of tort law, including requirements of causation and duty.’ [Citation.]” (Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1140.) In Stratus’s motion for summary judgment, it argued that it did not owe Steward a duty and that it was not the cause of Steward’s injuries. The trial court found that Steward did not establish the elements of duty and causation. By addressing the elements of duty and causation, Stratus and the trial court addressed Steward’s claim for negligent hiring, and therefore, we find Steward’s argument unpersuasive.
Stratus contends that Steward did not allege a cause of action against Stratus for negligent hiring and supervision. Our review of Steward’s first amended complaint reflects that Steward did allege that Stratus was negligent in hiring and supervising the security guard. Steward’s complaint alleges (1) plain negligence; (2) negligent hiring and supervision; and (3) negligent infliction of emotional distress, under one heading: “First Cause of Action: Negligence; By Plaintiffs Against All Defendants.” (See Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1257 [discussing multiple theories liability presented in a single cause of action].) Consequently, we are not persuaded that Steward did not sue Stratus for negligent hiring and supervision.
C. EVIDENTIARY RULINGS
For the sake of thoroughness, we will address Steward’s contention that the trial court erred by sustaining three of Stratus’s evidentiary objections. We disagree with Steward’s contention.
We review the trial court’s evidentiary rulings for an abuse of discretion. (Great American Ins. Companies v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 449.)
1. PATROL LOG
First, Steward contends that the trial court erred by sustaining Stratus’s objection to the “Central Valley Metropolitan Patrol Miscellaneous Log Report.” Stratus objected to the Log Report because (1) there was a lack of foundation; (2) the report was hearsay; and (3) it was irrelevant. “‘Relevant evidence’ means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) The Log Report is dated October 26, 2004; the shooting incident in the instant case occurred on August 26, 2006. The Log Report reflects that a car was parked in a red zone near Aventerra and that there was “very heavy rain.” We do not see the relevance of the Log Report, because it is dated almost two years before the shooting, and contains no information about other violent incidents in the area. Accordingly, we conclude that the trial court did not abuse its discretion by sustaining Stratus’s objection because the evidence was not relevant. (Evid. Code, § 350.)
2. POLICE DISPATCH LOG
Next, Steward contends that the trial court erred by sustaining Stratus’s objection to the police call log from the night of the shooting. The call log documents the time that the shooting was reported to the police. Stratus objected to the call log because it (1) lacked foundation; (2) was irrelevant; and (3) was hearsay. “Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the regular course of a business; [¶] (b) The writing was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and [¶] (d) The sources of information and method and time of preparation were such as to indicate its trustworthiness.” (Evid. Code, § 1271.)
The call log reflects that the shooting was reported to the police at 12:40 a.m. The call log appears to have been printed out from a computer-it does not include any information from the custodian of records or any information regarding where it originated from or how it was prepared. Steward’s attorney declared that the call log was a “true and correct copy” of the police call log, and that it was “produced in response to [a] subpoena.” Steward’s attorney asserted that the call log was admissible as a record by a public employee. (Evid. Code, § 1280.)
We note that the record contains a declaration from the custodian of the Fontana Police Department’s records certifying that records pertaining to Steward were made in the regular course of business. The declaration refers to “all the records called for in the attached Subpoena”; however, there is no subpoena attached to the declaration; therefore, we cannot determine what documents are being referred to in the custodian’s declaration.
The trial court properly sustained Stratus’s objection because there is no proof that the call log was (1) prepared by a public employee acting within the scope of his or her duties; (2) made at or near the time of the shooting; and (3) that the sources of information and method of preparation were such as to indicate the trustworthiness of the call log.
3. INCIDENT REPORT
Steward contends that the trial court erred by sustaining Stratus’s objection to an incident report. Stratus objected to the incident report because it lacked foundation and was hearsay. The incident report is a document that appears to have been printed from a computer. The document is titled “Aventerra II Incident Report 8/26/06”; however, the report does not include any information about who authored the report or when it was authored.
We conclude that the trial court did not abuse its discretion by sustaining the objection because there was no evidence (1) the writing was made in the regular course of business; (2) the writing was made at or near the time of the act, condition, or event; (3) explaining the mode of its preparation; and (4) explaining that the information and method and time of preparation were such as to indicate its trustworthiness. (Evid. Code, § 1271.)
Steward’s attorney declared that the report was prepared by “Karen Smith a supervisor for defendant Cannon Management produced in discovery.” Steward’s attorney argued that the document was not hearsay because it was the statement of a party opponent. There is nothing on the document identifying it as the statement of a party opponent. Accordingly, we are not persuaded that the trial court’s ruling was arbitrary or irrational.
4. CONCLUSION
In sum, the trial court did not abuse its discretion by sustaining Stratus’s evidentiary objections.
DISPOSITION
The judgment is reversed. Costs on appeal are awarded to appellant.
I concur: KING J.
RICHLI, J., Dissenting.
The conduct of the security guard in this case did not breach any duty. Moreover, it was not reasonably foreseeable that his conduct would cause Roosevelt Turner’s senseless explosion of violence. Hence, I must respectfully dissent.
I accept that Stratus Security Services, Inc. (Stratus) had a contractual duty to protect residents of Aventerra Apartments, including plaintiff Antonio Steward. (See generally Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193 (Marois).) However, this was not a duty to protect residents against any and all hazards; Stratus was not an insurer of their well-being. Rather, as Steward’s expert witness testified, and as the majority apparently accepts (maj. opn., ante, at pp. 8-9), Stratus’s duty to protect was defined in terms of its other contractual duties, such as its duty to remove loiterers and trespassers and to call the police in the event of crime.
I do not agree that it had a contractual duty to break up parties. (Maj. opn., ante, at p. 9.) It had a contractual duty to enforce the “house rules” (which were in evidence) and the “crime-free lease addendum” (which was not).
The group of 10 or so young Black males, however, were neither loiterers nor trespassers. They were out in front of apartment I 144. The door of the apartment was open; the loud music was coming from inside. The security guard testified that he talked to one of the men; “immediately” after that, the music went down, and “[i]t looked like they were headed inside the house.” Also after that, he testified, “[T]he tenant came up and asked me was it because of the loud music or the people being outside of the apartment. And I told him I didn’t know. And then he told me that he would do like I ask[ed].”
Thus, in light of all of the information available to the guard, the men were guests of the tenant in apartment I 144. Moreover, based on the guard’s own perceptions, as well as the tenant’s assurances, he had every reason to think they were going inside. Even if he had personally watched them all go inside, there would have been nothing to stop them from coming back out again. Surely he was not supposed to keep watch over the apartment all night; that would have kept him from performing his duties - including his duty to protect - elsewhere at the complex. And last but not least, no crime had been committed, so there was nothing to call the police about.
In Marois, the court held that a private security company hired by a fast-food restaurant had a duty “to act affirmatively to protect... customers while they are on the business premises.” (Marois, supra, 162 Cal.App.3d at p. 200, fn. omitted.) However, that was not the only holding of the court that is significant here. In that case, one Terry Hunt, who had a bloody face and clothes, entered the restaurant and went into its bathroom. A guard asked him to leave. He did, but he only went as far as the parking lot. (Id. at p. 196.) About 20 minutes later, Hunt and a second man used a baseball bat to vandalize another business in the parking lot. Plaintiff Marois, a customer of the restaurant, got into a fight with them. Marois was retreating, however, when Hunt hit him with the baseball bat. (Id. at p. 197.) The court specifically held that, once the guards asked Hunt to leave the restaurant, they had no duty to make sure that he also left the parking lot: “To insure compliance with their directive, the guards would have had to focus on Hunt to the exclusion of their other responsibilities. In addition, Hunt’s cooperative conduct following [the guard]’s initial request gave them no reason to suspect a continuing problem.” (Id. at p. 200.) “As a matter of law, ... a reasonable jury could not find that [the guards] were negligent” at that point. (Id. at p. 201.) Here - identically - the guard had no duty to focus on the group of young Black males to the exclusion of his other responsibilities, and their cooperative conduct gave him no reason to suspect any continuing problem.
Even if I were to agree that the security guard breached a duty, I would still conclude that the harm to Steward was not reasonably foreseeable. In discussing foreseeability, the majority focuses on the security guard’s own testimony that he “didn’t want to be there” because there were “about 10 of them and one of me.” (Maj. opn., ante, at pp. 14-15.) He added that what concerned him was “the unknown element....” All of this testimony, however, goes to his state of mind before he contacted the group. After he did, the tenant agreed to comply, the music went down, and the men appeared to be headed inside; the “unknown element” was gone. There was no apparent threat to residents of the apartment complex.
The security guard also testified that he had a “vibe” or a “feeling” that the first man he talked “might be possibly gang affiliated....” He stated, “It’s a black thing. That’s the only way I know how to describe it.” The majority does not mention this testimony and does not consider it in connection with its foreseeability analysis. I therefore see no need to consider it, either. If I did, however, I would still conclude that, in light of the group’s prompt compliance, this “vibe” alone did not make violence foreseeable. And finally, even if it did, I fail to see what the guard was supposed to do about it. He could not prevent tenants from having guests who were gang members.
The majority also relies on the security guard’s testimony that, when a police officer interviewed him about the shooting, he “told him about the gathering at [apartment] I 144” because he “had a feeling that it might have been related.” (Maj. opn., ante, at p. 15.) This reasoning, however, substitutes hindsight for foreseeability. Of course, once the guard knew there had been a shooting, he would tell the officer about the young Black males who had been playing loud music; presumably he would also tell them about anything else out of the routine that had happened that evening. But that is not evidence of foreseeability.
Plaintiff Steward’s injuries are horrific. His life has been devastated, as have the lives of those around him. The legal blame for that, however, belongs to Roosevelt Turner, as well as to the gang culture in which it is de rigueur to fire eight or nine shots at somebody who fails to give you their cigarette on demand. It does not belong to the employer of a security guard who was just doing his job.
The property manager did testify that “[p]arties were not permitted.” She added, however, “[I]f residents gave parties unbeknownst to us, as long as... they kept it confined to inside their dwelling unit and it wasn’t disturbing other residents, we didn’t have a problem with it.”
The lease prohibited “loud or late parties or music.” Similarly, the house rules provided, “Unnecessarily loud noise due to... [a] party... is not permitted.” By negative implication, quiet parties were allowed.
Thus, it is not a reasonable inference from the record as a whole that guards were supposed to stop any and all parties.