LISA v. BINGHAM

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Court of Appeal, First District, Division 4, California.

LISA P. et al., Plaintiffs and Appellants, v. J. Gordon BINGHAM et al., Defendants and Respondents.

No. A068153.

Decided: March 07, 1996

Michael J. Kinane, Law Offices of Michael J. Kinane, Oakland, Charles A. Bonner, Law Offices of Charles A. Bonner, Sausalito, for Appellants. Brian J. Morris, Law Offices of Alton M. Chambliss, San Francisco, for Respondent J. Gordon Bingham and Stephens Property Management. Cheryl Ontiveros, Laura Uddenberg, Law Offices of Cheryl Ontiveros, Salinas, for Respondent Albertson's, Inc.

Plaintiffs, Lisa P. and Sheila M., appeal from a judgment entered upon summary judgments:  (a) for defendants J. Gordon Bingham (Bingham) and Stephens Property Management, the owner and property management company of a retail parcel which housed a Clothestime store which employed plaintiffs;  and, (b) for defendant Albertson's, Inc., the anchor tenant in the shopping center which had assumed certain responsibilities for maintenance of the common areas of the center.   Because we find that the trial court erred in granting the summary judgment we reverse.

Plaintiffs, 19 and 20 years old on July 27, 1992, were the only clerks on duty that night at the Clothestime store in the Peppertree Plaza.   Shortly before closing time Derrick Brown, who had come into the store twice before that day, returned as he said he would to purchase some clothing for his girlfriend.   Instead of making a purchase, however, Brown pulled a gun and forced both young women to the floor.   After taking the store's receipts he directed the two young women into the back room where he ordered them to undress.   Brown then raped Lisa P. and slapped Sheila M. about the buttocks.   Lisa tricked Brown into fleeing by telling him that unless they were out of the store by 30 minutes after closing time an alarm would be triggered.

Brown's robbery in the Clothestime store, it turned out, was but one in a string of robberies, some ending in rape, which he committed in the course of a 14–day period.   Brown specialized in committing robberies at Payless Shoe stores.   After visiting the shoe stores and making himself known to the clerks he would return at closing time, rob the clerks at gun point, and on some occasions rape a female clerk.

Plaintiffs filed a complaint asserting causes of action for battery, false imprisonment and intentional infliction of emotional distress against Derrick Brown.   The complaint named as defendants Bingham, owner of the Clothestime parcel, his property managers, Stephens Property Management, and Albertson's which at the time of the incident had assumed some responsibility for maintaining the common areas of the shopping center.   The gravamen of plaintiffs' claims against these defendants was that they were negligent in failing to take reasonable measures to secure the shopping center.1  In addition plaintiffs alleged that Bingham and Stephens Property Management breached their lease with Clothestime by failing to provide reasonable security.

Discussion

Duty and Foreseeability

 An action in negligence requires a showing that defendant owed plaintiff a legal duty, that defendant breached that duty and that the breach was a proximate or legal cause of the injury.  (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673, 25 Cal.Rptr.2d 137, 863 P.2d 207.)

Albertson's and then Bingham and Stephens Property Management moved for summary judgment.   Albertson's sought summary judgment on the basis that it owed no duty to provide security because the crime rate in the City of Livermore generally was low, the past problems at the shopping center had involved minor, mostly juvenile, mischief, and Brown's crime was an unforeseeable product of a one-man crime spree which was not causally linked to the absence of security guards.   Bingham and Stephens Property Management made their motion on the ground that there was no duty to provide additional security measures because there had been no prior similar criminal incidents and that any duty arising under the lease was no broader than that which existed under the common law.

 Summary judgment is properly granted when the moving party establishes its right to entry of judgment as a matter of law.  (Code Civ.Proc., § 437c, subd. (c).)  On appeal we review de novo a summary judgment granted defendants.  (Villa v. McFerren (1995) 35 Cal.App.4th 733, 741, 41 Cal.Rptr.2d 719)  The existence of a duty is a question of law which is likewise reviewed de novo in this court.  (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 674, 25 Cal.Rptr.2d 137, 863 P.2d 207.)

In granting the motion for summary judgment as to Albertson's the superior court found that it owed no duty to plaintiffs “regarding security ․ of the interior of the Clothestime premises,” that it had breached no duties “with regard to security, operation, or maintenance of the common areas,” and that it had neither actual nor constructive knowledge “from which it could anticipate the violent criminal rape and robbery by Derrick Brown ․ sufficient[ ] to require any action or warnings by Albertson's, Inc.”   Similarly the court granted summary judgment in favor of Bingham and Stephens Property Management on the basis of its finding that neither had a duty to plaintiffs and even if there had been a duty to provide additional security the failure to do so was not a cause of the injury suffered.

The superior court based its finding of no duty upon its understanding of the analysis set forth in Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at pp. 674–680, 25 Cal.Rptr.2d 137, 863 P.2d 207, a case which arose on a summary judgment.   In Ann M. the Supreme Court reiterated its earlier holding that a landlord has a duty to take reasonable steps to secure common areas against the foreseeable criminal acts of third parties.  (Id. at p. 674, 25 Cal.Rptr.2d 137, 863 P.2d 207.)   It also concluded that the duty is not excused merely because the injured party is an employee of the landlord's tenant and that the existence of the duty is not precluded by the fact that the actual crime occurs inside the leased premises proper and not in the common area under the landlord's control.  (Id. at p. 675, 25 Cal.Rptr.2d 137, 863 P.2d 207.)

Ann M. was an employee of a photo processing store located in a shopping strip mall who was raped during a theft of the store receipts by a man who accosted her shortly after she opened the store at 8 a.m.  (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at pp. 670–671, 25 Cal.Rptr.2d 137, 863 P.2d 207.)   The court in Ann M. assessed the shopping mall's duty to provide security guards by balancing the foreseeability of the criminal acts against the burdensomeness, vagueness and efficacy of such a patrol and concluded:  “[w]hile there may be circumstances where the hiring of security guards will be required to satisfy a landowner's duty of care, such action will rarely, if ever, be found to be a ‘minimal burden.’  ․ [W]e conclude that a 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.   We further conclude 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.”  (Id. at p. 679, 25 Cal.Rptr.2d 137, 863 P.2d 207;  italics added.)

 As the court in Ann M. noted, a landowner's duty of care includes the duty to exercise reasonable care to learn whether criminal acts are occurring or are likely to occur on its land.  (Id., 6 Cal.4th at p. 679, 25 Cal.Rptr.2d 137, 863 P.2d 207;  Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 807, 205 Cal.Rptr. 842, 685 P.2d 1193.)   In Ann M. the employee had presented evidence that the common areas of the strip mall were frequented by transients, though there was no evidence that her attacker was a transient.   In Ann M., however, there was uncontroverted evidence that the landlord had a standard practice of keeping records of violent crimes and that its “records contain no reference to violent criminal acts prior to Ann M.'s rape.”  (Ann M., supra, 6 Cal.4th at p. 680, 25 Cal.Rptr.2d 137, 863 P.2d 207;  italics added.)

Ann M. controls this case.   However, unlike the trial court, we hold that it compels a different result.   The focus of the Ann M. analysis was whether or not there had been prior similar incidents which would create a high level of foreseeability.   In the instant case the trial court concluded that the prior incidents were not similar and that Derrick Brown was “acting on some inner compulsion or impulse” which made his crime unforeseeable.

 In looking at the question of foreseeability the task “is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.”  (Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6, 224 Cal.Rptr. 664, 715 P.2d 624.)

 By defining the injury suffered by these plaintiffs in very narrow terms as a rape the trial court concluded that it was unlike prior crimes at the Pepper Tree Shopping Center.2  It then noted that there had been “a hold-up in a Yogurt Shop, and other armed robberies in the vicinity of the shopping center․  [O]ne or more of these robberies involved at least an intimation of sexual assault.”   The court suggested that security guards would have been unlikely to prevent the rape because Brown's “actions were completely disconnected from whatever other violent or criminal incidents had taken place at this particular shopping center.”   The court concluded that there was no evidence Brown had had any prior contact, criminal or otherwise, with the Pepper Tree Shopping Center which might have put the landowner on notice of the risk he posed.3  Under these circumstances the court found that the crime was not foreseeable, and therefore there was no duty to provide additional security measures.

As an initial matter we believe both the trial court and the dissent define “prior similar incidents” too narrowly by characterizing this incident as a rape.   In fact, the incident began as an armed robbery which then escalated to include rape of one of the two robbery victims.   In Ann M., where the victim was also raped in the course of a store robbery, the Supreme Court characterized the duty inquiry as whether “violent criminal assaults” were foreseeable.  (Id., 6 Cal.4th at p. 679, 25 Cal.Rptr.2d 137, 863 P.2d 207.)   Surely then the precise nature of the physical injury which results is not the test of whether it is foreseeable that an armed robbery may result in physical injury to the victim.

Unlike Ann M. here there was undisputed evidence of a number of incidents of violent criminal assault—more specifically armed robberies—in stores in the Peppertree Plaza of which the landlord should have known.   Indeed, in Ann M. our Supreme Court suggested “It is possible that some other circumstances such as immediate proximity to a substantially similar business establishment that has experienced violent crime on its premises could provide the requisite degree of foreseeability.”  (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 679, fn. 7, 25 Cal.Rptr.2d 137, 863 P.2d 207.)

Here we find that degree of foreseeability to be provided by the following armed robberies: 4  On January 19, 1991, at about 8:30 in the evening a man holding a gun under a towel entered the My Heart's Delight Yogurt shop and demanded that the female clerk give him the money in the cash register (there was disputed evidence that the clerk was forced to remove her clothing); 5  on May 24, 1991, at around 9:30 in the evening a man displayed a handgun tucked into the waistband of his pants and demanded the cash receipts from the clerk at the drive-up window of a Carl's Jr. located across the mall driveway from Clothestime;  on June 14, 1992, at about 4:00 in the morning a female employee of a Taco Bell, also located in the mall, was accosted by an armed robber who was frightened off when the woman's husband seized the robber's gun.   The yogurt shop was a tenant in one of the buildings Bingham owned and Stephens Property Management managed.   Stephens Property Management managed all the rental properties in the shopping center except Albertson's, Pay Less Drug Store, Carl's Jr. and Taco Bell.

Using the formula announced by the Supreme Court in Ann M. we conclude that a high degree of foreseeability has been established by the proof of the prior similar incidents of violent crime set forth above and that therefore the duty of care owed to plaintiffs includes the hiring of security guards.

In the view of the dissent only the yogurt shop robbery is relevant to our inquiry.   The dissent so constricts the test stated by Ann M. that only the most extreme circumstances will ever give rise to a duty.   First, the dissent concludes that “similar” means “identical.”   It then reads Ann M. to permit one free crime—rape, armed robbery, or whatever—per parcel, per owner.  (Dis. opn., post, pp. 654, 655.)   Thus, even though Bingham owned and Stephens Property Management managed both the yogurt shop parcel and the Clothestime parcel, under the reasoning of the dissent after the armed robbery of the yogurt shop Bingham and Stephens Property Management could wait for a second armed robbery of the yogurt shop before any duty might arise.   Were the next yogurt shop crime to be an ax murder it presumably would not operate to trigger a duty because it would not be an armed robbery and therefore not a similar incident as that term is used by the dissent.   Unlike the dissent, we understand the test enunciated by the Supreme Court in Ann M. to require foreseeability, not dead bang inevitability.6

 Defendants failed to establish on the motion for summary judgment that their efforts to investigate criminal activity at the Peppertree Plaza were reasonable.   A landowner has a duty to exercise reasonable care to discover criminal acts being committed or likely to be committed on its property.  (Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 807, 205 Cal.Rptr. 842, 685 P.2d 1193.)   Defendants merely presented evidence to the effect that they relied on volunteered reports of crime by means of which they had obtained actual knowledge of only one prior armed robbery.7  In that respect the facts of this case are much different from the situation in Ann M. where the shopping center had a standard practice of recording instances of violent crime and those records “contain[ed] no reference to violent criminal acts prior to Ann M.'s rape.”   (Id., 6 Cal.4th at pp. 679–680, 25 Cal.Rptr.2d 137, 863 P.2d 207.)

Regardless of exactly how many armed robberies had occurred at Peppertree Plaza, it is clear that in this case there had been several instances of store receipts taken at gun point from clerks during either the late evening hours or close to closing time.   These armed robberies stand in sharp contrast to the very general evidence of loitering transients or a high neighborhood crime rate which were rejected in Ann M. as inadequate evidence of prior similar crimes occurring in the shopping mall.   Instead, here there were prior episodes of armed men preying on clerks in the Peppertree Plaza complex, and at a business located immediately adjacent to the Clothestime store (the incident at Carl's Jr.), which created a high foreseeability that armed robberies were a risk against which the defendants had a duty to protect.

To the extent that the trial court found the armed robbery and rape committed here not to be “sufficiently similar” to the prior armed robberies which had occurred at Peppertree Plaza as to make the crime unforeseeable, we conclude that it erred by finding defendants had established as a matter of law that they owed plaintiffs no duty to provide additional security.   We hold that the string of prior armed robberies which were committed did create the high degree of foreseeability required by Ann M. to impose a duty to provide additional security.   Moreover to the extent that the trial court's ruling found that such prior armed robberies did not have the effect of putting defendants “on notice” we find that defendants failed to establish on the motion for summary judgment that they had exercised reasonable care to investigate crime at the Peppertree Plaza.   We do not hold that defendants may not be able to prove that they exercised reasonable care to investigate the likelihood of criminal acts committed against tenants and their employees—merely that they did not do so on the motion below.

Causation

 Because we reach this result we must reach the additional claim defendants advanced as grounds for summary judgment on their negligence claims—namely whether defendants' failure to provide security guards was the cause of plaintiffs' injuries.

Defendants argued below that even if there had been security guards patrolling at Peppertree Plaza the presence of a guard would not have prevented the sexual assault which occurred once Brown had taken the two women into the back room portion of the store where none of them could have been seen by a guard standing in the common area looking into the glass-fronted store.

 If the evidence on causation is such that reasonable minds could not dispute that there was no causal link between the duty breached and the injury suffered the question of causation can appropriately be resolved by summary judgment;  otherwise, once duty has been established causation is a triable issue of material fact.  (Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 428, 20 Cal.Rptr.2d 97.)

Defendants' contention, of course, begs the point which is whether Brown, upon seeing a security guard making rounds in the common areas, would have decided to rob another, less well-policed store.   There was evidence before the trial court that Brown had been robbing Payless Shoe stores because he harbored a grudge against them as his former employer.   Thus, it could be inferred that Brown selected Clothestime as a target for some reason other than his grudge against his former employer.   Likewise, there was disputed evidence over whether there had been security guards at the scenes of Brown's other crimes and whether he was deterred from other potential robberies by the presence of security guards.   Brown had cased the Clothestime store on the day of the crime;  he had come into the store once and he walked by about 15 minutes before the robbery carrying a cup with a Carl's Jr. logo on it.   Carl's Jr. was located across a driveway and opposite the glass fronted Clothestime store.   Given these facts we cannot say that reasonable minds could not differ on whether the presence of a security guard in the Peppertree Plaza might not have deterred Brown from robbing Clothestime and of raping Lisa P.   Summary judgment would not have been properly granted on the question of causation.

Breach of Contract Claim

 By their complaint plaintiffs alleged on information and belief that the lease agreement between Clothestime and defendants Bingham and Stephens Property Management contained a provision requiring reasonable security.   In support of their motion for summary judgment these defendants did not proffer the lease itself.

Under Code of Civil Procedure section 437c, subdivision (o) defendants were obliged to make a showing that the cause of action for breach of contract had no merit in order to trigger plaintiffs' duty to go beyond the allegations of their pleadings.8  Accordingly, there was no ground upon which it would have been proper to grant summary judgment on the breach of lease claim as to defendants Bingham and Stephens Property Management.

 Albertson's was named as a doe defendant on the breach of contract claim.   Apparently, the theory of recovery upon which plaintiffs were proceeding against Albertson's was in its capacity as manager of the common area.   In support of its motion for summary judgment Albertson's introduced documents entitled Declaration of Restrictions and Grant of Easements and Common Area Maintenance Agreement.   Albertson's contended that these agreements did not contractually obligate it to provide common area security.   These documents did not expressly preclude provision of security as a part of common area maintenance.9  In his declaration Pedraza, the Albertson's store director, stated that he maintained the common areas after the former common area maintenance director resigned in late 1989.   Pedraza also contracted on behalf of the tenants for a lunch hour security patrol of the parking lot.   Thus, there was evidence that Albertson's had in the years immediately preceding this incident undertaken some degree of responsibility for common area maintenance and security which raised triable issues of material fact precluding summary judgment on the contract claim as to Albertson's as well.

Disposition

The judgment is reversed as to all defendants.

I respectfully dissent from my colleagues' opinion on the duty question.   I concur with their decision on the breach of contract claim as to defendants Bingham and Stephens Property Management but disagree with their conclusion on that claim with reference to defendant Albertson's.

In my view, the majority has ignored key facts and has failed to follow the dictates of our Supreme Court in Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 25 Cal.Rptr.2d 137, 863 P.2d 207.   One result of their decision is the creation of a duty on the part of an owner and a manager of only a portion of a strip mall (Bingham and Stephens Property Management) to hire security guards, when neither had actual knowledge of prior incidents which were similar to Brown's attack on plaintiffs.   A second result is the creation of a duty on the part of the owner of a unit where no prior similar incidents had occurred (Albertson's) to hire security guards to protect employees of tenants in another unit—the one owned by Bingham in which plaintiffs were attacked—or, by logical extension, all employees and customers inside all units in the Peppertree Plaza and in all common areas of the mall.   The net result of their decision is to make the defendants the guarantors of the safety of all persons located anywhere on, or even arguably nearby, the premises of the Peppertree Plaza.

A. Neither Bingham, Stephens Property Management, Nor Albertson's Had a Duty to Hire Security Guards to Patrol the Peppertree Plaza

Before analyzing the duty question in the case at bench, it is important to note the following facts:  (1) Bingham does not own the Peppertree Plaza;  he owns three out of nine parcels in the Plaza; 1  (2) Stephens Property Management manages four of the nine parcels in the Plaza, including the three owned by Bingham;  (3) Albertson's owns a single parcel (number four) in the Plaza;  (4) the common areas (essentially, all areas not located within the confines of the individually owned parcels) are managed under the terms of a recorded declaration of restrictions and grant of easement and a related common areas maintenance agreement;  (5) Albertson's served as “maintenance director” under the maintenance agreement as of July 27, 1992;  (6) the maintenance director had responsibility for maintaining the common areas “in good and clean condition”;  and (7) nothing in the maintenance agreement created an obligation on the part of the maintenance director to provide or contract for common area security or security within the confines of any individual parcel.

“It has long been recognized that ‘a possessor of land who holds it open to the public for entry for business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent or intentionally harmful act of third persons ․ and by the failure of the possessor to exercise reasonable care to (a) discover that such acts are being done or are likely to be done, or (b) give a warning adequate to enable the visitors to avoid the harm, or otherwise protect them against it.’  [Citations.]   Liability will normally be imposed in circumstances where the possessor has reasonable cause to anticipate the misconduct of third persons.  [Citations.]”  (Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 807, 205 Cal.Rptr. 842, 685 P.2d 1193, italics added.)

In the case at bench the question of whether any of the corporate defendants had a duty to provide security guards must be resolved by comparing the burden of hiring them against the foreseeability of harm stemming from a choice not to hire them.  (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 678, 25 Cal.Rptr.2d 137, 863 P.2d 207.)

(1) The Burden of Imposing a Duty to Hire Security Guards is Enormous

The burden side of the equation is obvious:  the burden is enormous.  “While there may be circumstances where the hiring of security guards will be required to satisfy a landowner's duty of care, such action will rarely, if ever, be found to be a ‘minimal burden.’   The monetary costs of security guards is not insignificant.   Moreover, the obligation to provide patrols adequate to deter criminal conduct is not well defined.  ‘No one really knows why people commit crime, hence no one really knows what is “adequate” deterrence in any given situation.’  [Citation.]   Finally, the social costs of imposing a duty on landowners to hire private police forces are also not insignificant.  [Citation.]”  (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 679, 25 Cal.Rptr.2d 137, 863 P.2d 207.)   The enormity of the burden is underscored by the undisputed fact that no California case, until now, has ever found such a duty.

(2) The Foreseeability of Harm Without Security Guards is Not Established

In order to analyze the foreseeability question, it must first be determined what the defendants actually knew and what the law says they should have known.   First, the only armed robbery of which each of the defendants had actual knowledge was the yogurt shop robbery.   Even assuming, arguendo, that that incident was “similar” to the one at issue here (and it was not), it is only a single incident.   And a single similar incident is not sufficient to trigger a duty to hire security guards under Ann M.:  “[W]e conclude that a 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.   We further conclude 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. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 679, 25 Cal.Rptr.2d 137, 863 P.2d 207, fn. omitted, italics added.)

In acknowledgment of the fact that the defendants' knowledge of the yogurt shop robbery, standing alone, is not sufficient to trigger a duty to hire security guards, my colleagues have determined the defendants had constructive knowledge of all the armed robberies which occurred at the Peppertree Plaza for a four-year period prior to July 27, 1992.   In my view that determination is wrong.

While it is true that a landowner has a duty to exercise “reasonable” care to discover that criminal acts have been committed or are likely to be committed on his or her property (Peterson v. San Francisco Community College Dist., supra, 36 Cal.3d at p. 807, 205 Cal.Rptr. 842, 685 P.2d 1193), that rule cannot be applied to foist constructive knowledge of prior robberies on Albertson's because none of the robberies cited in the majority opinion occurred on property owned by that defendant.   In addition, the yogurt shop robbery was the only one committed on any of the parcels owned by Bingham.   In my view, the defendants' actual knowledge of a single robbery on one unit of the plaza was insufficient to give rise to a duty of inquiry and, thus, “constructive” knowledge (Civ.Code, § 19) of the three other robberies, which my colleagues hold create a duty to hire security guards.2

In an attempt to circumvent the obvious fact that only one prior robbery occurred on a parcel owned or managed by any of the defendants, my colleagues cite the following footnote from Ann M.:  “It is possible that some other circumstances such as immediate proximity to a substantially similar business establishment that has experienced violent crime on its premises could provide the requisite degree of foreseeability․”  (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 679, fn. 7, 25 Cal.Rptr.2d 137, 863 P.2d 207.)   What the Supreme Court said was that it is “possible ” that immediate proximity to a similar establishment which has experienced violent crime “could ” provide the requisite degree of foreseeability.   What my colleagues have done is turn “possibility” into “certainty” under facts which do not demand such an extension of the concept of duty.   In my view, that error stems from two other errors.   The first error is the majority's necessary, but unexpressed, conclusion that the business establishments experiencing robberies before the attack on plaintiffs were “similar” to the store in which plaintiffs were working.   The second error is their determination that the three incidents they cite are “similar” to the attack on appellants.

It is worth noting at the outset that Ann M. provides no guidance with regard to determining what constitutes a “similar business establishment” or a “similar incident.”   In Ann M., evidence was introduced that there were bank robberies in the plaza before the attack on Ann M.  (Ann M. v. Pacific Plaza Shopping Center, supra, 6 Cal.4th at p. 671, 25 Cal.Rptr.2d 137, 863 P.2d 207.)   However, Ann M. conceded that the robberies (and various other incidents, including purse snatchings) were “not similar” to the violent assault on her.  (Id. at p. 680, 25 Cal.Rptr.2d 137, 863 P.2d 207.)   In the case at bench no such concession has been made, and Ann M. provides no clue as to how a “similarity” assessment should be made.   Thus, we must turn elsewhere for guidance.

Black's Law Dictionary indicates that the word “ ‘similar’ is generally interpreted to mean that one thing has a resemblance in many respects, nearly corresponds, is somewhat like, or has a general likeness to some other thing but is not identical in form and substance, although in some cases ‘similar’ may mean identical or exactly alike.   It is a word with different meanings depending on context in which it is used.”  (Black's Law Dict. (6th ed. 1990) p. 1383.)

The majority's conclusion that the establishments experiencing robberies in the four-year period prior to July 27, 1992, are “similar” to the store in which plaintiffs were working when they were attacked is indefensible, given this definition of “similar.”   For all practical purposes, the only factor the three cash-intensive, food service restaurants experiencing robberies before July 27, 1992, have in common with the retail clothes store in which plaintiffs were working is the fact that all four were open to the public.

My colleagues' conclusion that the three armed robberies described in the majority opinion are “similar” to the robbery of the Clothestime and the attack on plaintiffs is whimsy.   None of the three robberies cited by the majority included a sexual assault or any other form of battery on the victims.3  My colleagues' focus on these three robberies was, in a sense, forced up on them by the actual record of the 627 “events” reported to the Livermore Police Department over the four-year period preceding the attack on plaintiffs.   Two glaring facts stand out from a review of those “events”:  (1) there were no rapes during that period;  and (2) there were no sexual assaults during that period.   Simply put, Brown's robbery of the Clothestime store and his attack on plaintiffs bore no resemblance in any meaningful respect to any incident reported to the Livermore Police in the preceding four-year period.

In my view, what constitutes a “similar incident” should be determined in light of the foreseeability analysis which flows from Peterson and Ann M.:  if a landowner knows that criminal behavior is occurring on or close to his or her premises, the landowner must investigate to determine (1) whether or not the criminal behavior is likely to pose a risk to those who enter property in the future and (2) whether or not some aspect or feature on the property (lack of lighting in a parking lot, inadequate locks on the doors of an apartment house, etc.) encourages the criminal conduct or, at least, makes it easy to perpetrate.   The choice whether or not to act to prevent third parties from causing harm to persons on the property will ordinarily depend on the answers to both questions.   In addition, the landowner's potential liability to persons injured by criminal conduct on his or her land in the future will depend on those answers.

Herein, none of the 627 “events” which occurred in the four-year period before the attack on plaintiffs presaged that attack.   Moreover, no evidence was presented in opposition to defendants' motions for summary judgment from which it can be inferred that some specific aspect or feature of the Peppertree Plaza encouraged violent assaults of any kind.

Ann M. teaches us that, unless the foreseeability of a violent criminal assault is high (based on “similar incidents” having occurred previously), even the owner of an entire shopping center will not be under a duty to hire security guards.   In the case at bench, there were no “similar incidents” under any reasonable definition of that term which would have made the attack on plaintiffs foreseeable.   Where the defendants did not own or manage the entire center, I find it completely inappropriate to hold them to a duty to hire security guards.   And that is precisely the duty the majority has imposed on the defendants.   While the majority couches its conclusion in terms of the duty to provide “additional security,” 4 that can only mean providing security guards in the context of this case.

The effect of the majority's decision may well be the imposition of liability on defendants because it is undisputed that the defendants did not hire security guards and, thus, breached the duty imposed upon them by the majority.   Thus, the only liability issue remaining for trial is causation.5

B. Albertson's Was Also Entitled to Judgment on the Breach of Contract Claim

The claim for breach of contract advanced by plaintiffs is unequivocally based on the lease between Bingham and Clothestime:  “[D]efendants J. Gordon Bingham and Stephens Property Management agree to lease subject premises to Clothestime, Inc.   Further, plaintiffs allege ․ that said lease agreement provides that defendants shall provide reasonable security to its tenants․”   While it is true that Albertson's was served as “Doe One” with reference to that claim, none of the charging language refers to “Doe One” as a party to the lease agreement which is the subject of the breach of contract claim.   I am mystified how the majority can find potential liability on the part of Albertson's under a lease agreement to which it is not a party.6

C. Conclusion

The majority's choice to impose a duty on the defendants to hire security guards is neither required by, nor authorized by, Ann M.   The burden of hiring security guards is substantial under any circumstance, but it is significantly greater here, when the defendants neither own nor control the entire area the majority suggests they are obligated to police.   That burden should not be imposed unless the foreseeability of an attack such as Brown's is very high.   Here, in addition to the factors already noted with regard to an attack like Brown's, it is clear that the defendants had no basis to suspect that Brown, himself, would attack plaintiffs because, not only had Brown not committed a prior crime at the Peppertree Plaza, he had not committed a single crime in the City of Livermore during his two-week-long crime spree.   Simply put, the foreseeability of an attack like Brown's was nil.   In my opinion the majority's extension of California law creates a new duty which is unfairly applied retroactively to these defendants.   This new duty is neither warranted by existing precedent nor desirable as a matter of public policy.

Sadly, had he not so recently departed this life, our good friend and mentor, Bernie Witkin would most certainly have touted this decision above all others to illustrate the boundless power of the judiciary in uncovering heretofore undisclosed liability.   Yes, Bernie you were right again:  “on a clear day you can foresee forever!”

FOOTNOTES

1.   The tort causes of action alleged against these defendants were:  (1) for general negligence on grounds defendants had a duty to provide “reasonable security measures” and (2) for premises liability on both a negligence theory and a theory of willful failure to warn of a dangerous condition or activity.   Lastly, plaintiffs alleged a cause of action for negligent infliction of emotional distress.

2.   This detailed discussion of the facts was prepared as a written ruling which was then incorporated into the order granting summary judgment to Albertson's.

3.   In response to plaintiffs' premises liability claim Albertson's maintained in its motion for summary judgment that it “had no actual or constructive knowledge of any ‘dangerous condition’ as alleged to anticipate the violent, criminal rape and robbery” and thus it had no duty to warn.

4.   In addition to these armed robberies the police reports introduced by Albertson's showed that approximately nine months before the yogurt shop armed robbery on March 23, 1990, there had been a robbery of the Best Donuts shop, in which two men, one displaying a gun tucked into his pants, demanded that the female clerk give them the contents of the cash register and then lie face down on the floor.

5.   Although defendants raised evidentiary objections to accounts of some of the prior crimes the trial court rejected those objections.

6.   The dissent finds a crucial distinction in that the yogurt shop, like Taco Bell and Carl's Jr., sells food and is not therefore a substantially similar business establishment to Clothestime which sells apparel.   This is a distinction which ignores the realities of modern retailing in neighborhood shopping centers.   The very sameness of the physical set-up of most retail establishments is one of the defining characteristics of such architecture—there is generally a counter at which cash is taken which is freely accessible to the public and a work area to the back of the store which can be entered without many physical impediments.   In this respect such stores differ substantially from banks or professional offices.   Most retail establishments are staffed by young people, and frequently the businesses are open long hours.   Surely, for purposes of determining whether a business is likely to be the target of a certain type of crime the crucial inquiry is not whether it sells hot dogs or running shoes, but whether from the standpoint of the criminal it presents a similar opportunity to commit his or her intended crime.

7.   In declarations submitted in support of the motion for summary judgment the manager of Albertson's, Ralph Pedraza, the owner of Stephens Property Management, Shirley Hays, and Bingham denied knowing of any “serious” or “assaultive” crimes in the Peppertree Plaza, though they each conceded they knew of the yogurt shop armed robbery.   Pedraza had learned of the yogurt shop robbery by overhearing his employees discussing it.   Neither Hays nor Bingham explained how they had learned of that robbery.   In her deposition Hays stated that she relied upon learning of criminal acts through reports made to her by tenants, the police or from newspaper accounts, though she did not regularly read the local papers.   None of the declarations submitted by the moving party articulated any formal efforts either by Bingham, Stephens Property Management or Albertson's to investigate or to document criminal activity at Peppertree Plaza.Plaintiffs offered the declaration of a former security manager for a shopping center who gave his opinion that Hays and Pedraza were failing to take active responsibility for security;  he cited in particular their lack of knowledge of student mischief and of various armed robberies in the shopping center which had been reported to police.

8.   “A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established․   Once the defendant or cross-defendant has met that burden, the burden shifts to plaintiff․   The plaintiff or cross-complainant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists․”  (Code Civ.Proc., § 437c, subd. (o)(2).)In this instance where defendants did not go forward the burden did not shift back to plaintiffs.

9.   Under the 1985 common area agreement the maintenance director was charged with maintaining the common area “in good and clean condition and repair, said maintenance to include, but not limited to, the following:  (a) Maintaining the asphalt surfaces․”

1.   The Clothestime store in which plaintiffs were attacked is located in parcel number eight—one of the parcels owned by Bingham.

2.   The majority's conclusion that the defendants failed to take reasonable steps to investigate criminal activity at the Peppertree Plaza puts the cart before the horse and is irrelevant to the creation of a duty to hire security guards.   It puts the cart before the horse because, as analyzed herein, the defendants had insufficient knowledge of incidents on property not under their control to create a duty of investigation.   It is irrelevant because, had they investigated, they would not have discovered any similar incidents giving rise to a duty to hire security guards.

3.   One of the plaintiffs testified at her deposition that she heard that the clerk at the yogurt shop had been forced to take off her clothes.   The police report of the robbery does not corroborate that hearsay statement, and no other evidence was presented to support that claim.   Accordingly, I assign no weight to that claim in my analysis.

4.   In their briefs on appeal and in oral argument, plaintiffs focused exclusively on the use of security guards as a deterrent to Brown's attack.   The only reference to any form of security apart from guards was made by plaintiffs' “security expert,” Prentice Earl Sanders, who opined in a declaration that “a reasonable common area security system, including either security guards and/or closed circuit cameras, would have deterred or prevented Derrick Brown from committing the crimes against plaintiffs.”   Sanders's declaration fails to indicate how (in his opinion) the closed circuit cameras would have served to prevent or deter Brown's crime.   Thus, the majority's conclusion that “additional security” should have been provided necessarily means that the defendants were required to hire security guards.

5.   Where causation is concerned, I concur that the defendants did not meet their burden for summary judgment purposes, but I am unable to see how the plaintiffs can meet their burden of establishing at trial that the failure to hire guards was the legal cause of the injuries suffered at Brown's hands.   In Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 439, 20 Cal.Rptr.2d 97, the Court of Appeal reversed a judgment in favor of a woman who was raped on the defendant's campus on the ground that the defendant's failure to cut down shrubs and to have more officers on patrol was not the legal cause of her injuries as a matter of law.   The court's analysis of the causation question and its discussion of public policy concerns involved in lawsuits arising out of criminal attacks in large areas open to the public merit attention:  “We think it comes down to this:  When an injury can be prevented by a lock or a fence or a chain across a driveway or some other physical device, a landowner's failure to erect an appropriate barrier can be the legal cause of an injury inflicted by the negligent or criminal act of a third person.  [Citations.]   But where, as here, we are presented with an open area which could be fully protected, if at all, only by a Berlin Wall, we do not believe a landowner is the cause of a physical assault it could not reasonably have prevented.  [Citation.]  [¶] Otherwise, where do we draw the line?   How many guards are enough?  ․ [¶] Who is going to pay for all this security?  ․ [¶] Police protection is, and in our view should remain, a governmental and not a private obligation.   Landowners in high-crime areas ought not to be forced out of the area or out of business altogether by an imposition of liability to the victims of violent crimes which the police have been unable to prevent.  [Citation.]”  (Id. at pp. 436–438, 20 Cal.Rptr.2d 97.)

6.   In its motion for summary judgment, Albertson's also pointed out that it should not be held liable on a breach of contract theory under the terms of the common maintenance agreement.   In my view, my colleagues' analysis of that agreement is irrelevant as plaintiffs did not allege that Albertson's could or should be found liable for any breach of that agreement.

POCHÉ, Associate Justice.

REARDON, J., concurs.