RIVERA v. UNITED AUTO WORKERS LOCAL 179 UAW CIO BUILDING CORP (1990)

Plaintiff in a personal injury action against the owner of a commercial building for alleged failure to provide protection against criminal conduct of a third party appeals from a summary judgment entered in favor of defendant.   We affirm.

 We first dispose of plaintiff's contention that the trial court erred in refusing to continue the hearing on the motion for summary judgment.

Code of Civil Procedure section 437c, subdivision (h) ¹ requires denial or continuance of a motion for summary judgment where it appears that facts which would defeat the motion may exist but for good reason cannot be presented at the time of the hearing of such motion.

Plaintiff, in opposing defendant's motion for summary judgment, submitted declarations outlining evidence which was being sought and explaining why it had not yet been obtained.

The evidence consisted of statements from members of the Los Angeles Police Department.   According to plaintiff's declaration, the policy of the Los Angeles Police Department was to respond only to subpoenas for depositions and to refuse to provide declarations.

We have examined the evidence which plaintiff claims to be able to present, given time to do so, and have concluded that even after giving that evidence full credit, plaintiff, as a matter of law, could not prevail on a trial.   This was essentially what the trial judge concluded.   Thus there was no error in denying plaintiff's motion for a continuance.

The undisputed facts are as follows.   Defendant owned a union meeting hall in the North Hollywood area of the City of Los Angeles.   Maria Garcia, a resident of that area, leased the hall for a single night for the purpose of holding a birthday party.   The rental fee was $400.

Defendant in the past had leased the building to over 100 different individuals and organizations for various functions.   Defendant, however, provided nothing more than permission to use the premises.   Garcia was in complete control of the party.   Defendant did not undertake to control the guest list or to regulate the party in any way.   Defendant had no representative on the premises and had no knowledge of who would attend the party.

Apparently, Garcia invited approximately 250 people which number included plaintiff and some members of a gang known as the “18th Street Gang.”   Also in attendance, but apparently uninvited, were approximately five members of the “North Hollywood Locos”, rivals of the 18th Street Gang.   During the course of the evening, a fight between members of the two gangs erupted.   Shots were fired.   Plaintiff was struck by one of the bullets.

Plaintiff's position is that the incident was foreseeable and that the defendant, by failing to protect plaintiff, breached a duty owed to him as an invited guest on defendant's premises.

Plaintiff's claim of foreseeability is premised on the assertion that certain members of the Los Angeles Police Department would provide depositions and testify at a trial that the North Hollywood area has experienced a high level of teenage gang violence within its Hispanic community and that the police were aware of a number of instances of “gang violence” in the area where the union hall was located.   In the past, some, but not all, of the lessees of the building had hired off-duty policemen to act as security guards.

While defendant's representative who executed the lease with Garcia stated that to his knowledge the gang problem was no greater in North Hollywood than in any other part of the City of Los Angeles, plaintiff argues that defendant was chargeable with constructive knowledge of the information possessed by the police.

It is undisputed, of course, that plaintiff was completely unknown to defendant and was not invited to the hall by defendant.   Similarly, plaintiff's assailant was neither known to nor invited by defendant.

The unstated assumption in plaintiff's position is that because defendant's building is located in an area with a large Hispanic population and because Garcia was herself Hispanic, it could be anticipated that the party would be attended by young Hispanics and that one or more of the attendees would be subjected to violent criminal attack.

It goes without saying that both Garcia and plaintiff, being members of the Hispanic community, would have as much knowledge as defendant of that potentiality.   Hence, defendant's liability cannot be based on any duty to warn of the danger.

Plaintiff's proposed answer to the problem is that armed guards should have been posted at the doors to search each person seeking admission and to refuse admission to persons suspected of being gang members.

This, of course, would involve an additional expense to the lessee because it may be assumed that defendant would not simply absorb the cost of such measures especially in this case where the rent was only $400.   It strikes us that subjecting potential Hispanic lessees to those additional owner's conditions or pursuing the other option of refusing to lease to Hispanics could subject defendant to a claim of violation of the Unruh Civil Rights Act (Civ.Code, §§ 51, et seq.).²

 Society's primary mechanism for preventing criminal activity is the maintenance of a professional constabulary.   In California, at least, the cost of maintaining that force is borne by property owners.   The simple fact that a particular parcel of property is situated in an area selected by criminals as a theater of operation is not a basis for requiring the owner of that parcel to personally augment the deterrence afforded by the regular police establishment.

 Nor is the fact that the incidence of crime has increased to an alarming degree, as evidence of the failure of the existence of the police establishment to deter all crime, justification for compensating victims of crime who happen to be on a commercial premises when victimized while other persons in other circumstances are not so compensated.

As we have pointed out in previous opinions, there is no reason to conclude that additional security measures instituted by private property owners can deter any particular crime any more effectively than the regular police establishment.  (See 7735 Hollywood Blvd. Venture v. Superior Court (1981) 116 Cal.App.3d 901, 172 Cal.Rptr. 528;  Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 214 Cal.Rptr. 395.)

The basic law of property owner's liability is easily stated but its application to a particular set of circumstances is not easily determined:  “A possessor of land who holds it open to the public for entry for his 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 accidental, negligent, or intentionally harmful acts of third persons․”  (Rest.2d. Torts, § 344, pp. 223–224.)   Section 315 of Restatement Second of Torts provides:  “There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct or (b) a special relation exists between the actor and the other which gives to the other a right to protection.”  (Id. at p. 122.)

Earlier cases applying these principles involved situations where the conduct of the third person was overt and in the presence of the property owner and the property owner had clear knowledge of the threat and the ability to prevent it.  (Edwards v. Hollywood Canteen (1946) 27 Cal.2d 802, 167 P.2d 729;  Sample v. Eaton (1956) 145 Cal.App.2d 312, 302 P.2d 431;  Pfeifer v. Standard Gateway Theater (1951) 259 Wis. 333, 48 N.W.2d 505;  Stillwell v. City of Louisville (Ky.1970) 455 S.W.2d 56.)

The zeal with which injured persons have sought a “deep pocket” and the tendency of some courts to socialize losses resulting from criminal conduct has produced some decisions which appear to have expanded the original precepts by creation of a duty of a property owner to somehow deter and prevent crime in general.  (See Gomez v. Ticor (1983) 145 Cal.App.3d 622, 193 Cal.Rptr. 600;  Cohen v. Southland Corp. (1984) 157 Cal.App.3d 130, 203 Cal.Rptr. 572;  Slapin v. Los Angeles International Airport (1976) 65 Cal.App.3d 484, 135 Cal.Rptr. 296.)

In the case at bench, according to plaintiff, it is a commonly known fact that there are several youthful gangs existing in the Hispanic community of North Hollywood, that these gangs are at war with one another, frequently use a variety of weapons and that whenever members of rival gangs come in contact, violence can be readily anticipated.   This in spite of the well publicized campaign on the part of regular law enforcement to suppress gang activity.

Thus, in large urban areas, such as the City of Los Angeles or even the North Hollywood area of that city, gang violence, as well as violent crime in general, seems to be a part of the daily environment.

As we pointed out in 7735 Hollywood Blvd. Venture v. Superior Court, supra, 116 Cal.App.3d 901, 906, 172 Cal.Rptr. 528, “[a]nyone can foresee that a crime may be committed anywhere at any time.   But that foreseeability which the owners of rental property or the proprietors of public premises share with the public at large, does not per se, impose a duty on such property owners or proprietors to [institute security measures].”

Furthermore, since the identity of those youth gangs and their membership is generally not a matter of public knowledge and is learned only through police intelligence channels, the average citizen would be hard pressed to know just when and where conflict between these gangs might erupt.

In Totten v. More Oakland Residential Housing, Inc. (1976) 63 Cal.App.3d 538, 543, 134 Cal.Rptr. 29, the court observed:  “A landlord is not bound to anticipate the criminal activities of third persons, especially where ․ the wrongdoers were complete strangers to both the landlord and the victim, and where the fight and the shooting incident leading to the injury came about precipitously [citations].”

To our mind there is a qualitative difference between the recognized duty to control the conduct of an identifiable person or persons engaged in overt conduct which threatens particular individuals under circumstances where the property owner has the duty to control that conduct and the ability to exercise effective control, and the creation of a duty to take measures aimed at affording protection from an amorphous threat of violent crime by unknown individuals.

This latter concept of crime prevention and deterrence is the primary basis for maintaining a regular police establishment.   As we pointed out in Noble v. Los Angeles Dodgers, Inc., supra, 168 Cal.App.3d 912, 918, fn. 2, 214 Cal.Rptr. 395:  “Government Code section 845 provides that:  ‘Neither apublic entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service’ (Emphasis added.)  [¶] That section is clear recognition of the difficulty, if not impossibility, of assessing the efficacy of a particular policing pattern and is designed to immunize public entities from speculative law suits such as the case at bench.  [¶] It seems anomalous to us that a public entity which has the primary role in providing police protection is so immunized while persons not generally considered to have that general responsibility are not so immunized.”

In the case at bench, defendant can be said to have known of the potential for gang violence in the North Hollywood area—the knowledge which it shared with the public in general.   The question is whether it had any additional knowledge which would create a duty to protect this plaintiff.   There is no question that both plaintiff and his assailant were unknown to defendant.

Defendant did nothing more than rent the premises to a young, Hispanic woman whose avowed purpose was to hold a birthday party and who would presumptively invite her friends and acquaintances.   Nothing in that situation could create any special relationship between defendant and plaintiff which would support the establishment of a duty to protect plaintiff.

Plaintiff's case also founders on the issue of causation since plaintiff's injuries did not result from any defective condition of the premises itself nor any affirmative conduct on the part of defendant or its agents.   The question is what inaction on the part of defendant caused plaintiff's injury?   As noted earlier, the identity and the plans of these gangs to which plaintiff attributes the violence are generally unknown except to certain police specialists and since neither the penal statutes of California nor the efforts of the Los Angeles Police Department in the area have served to deter the numerous violent confrontations that plaintiff alleges have occurred, there is obviously no reasonable action which defendant could have taken that would have prevented the violence that did occur.

Tragic as this case is, it must be remembered that the primary cause of plaintiff's injury was the person who did the shooting and not the defendant.

Based upon the foregoing, the trial court correctly concluded that there was no triable issue of fact which would have supported plaintiff's case.

The judgment is affirmed.

FOOTNOTES

1.   Code of Civil Procedure section 437c, subdivision (h) provides:  “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just.”

2.   Civil Code section 51 provides in pertinent part:  “․ All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, natural origin, or blindness or other physical disability are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”

COMPTON, Acting Presiding Justice.

GATES and FUKUTO, JJ., concur.