PEREZ v. CABALLERO (1988)

OPINION

STATEMENT OF THE CASE

Plaintiffs, the surviving wife and children of Lucio Perez, appeal from a summary judgment in favor of the defendants in their action for wrongful death brought against the operator of the La Frontera Bar, defendant Nohemi Villareal Noriega ¹ (Noriega), and the landowner who leased the bar to Ms. Noriega, defendant Luis Caballero (Caballero).

STATEMENT OF FACTS

On the evening of February 18, 1984, Antonio Garcia Guillen went to the La Frontera Bar with two friends, Mr. Ruiz and Mr. Florez.   Mr. Perez, the decedent, was there that night.   Guillen had never seen him before, and he did not speak to Perez while they were in the bar.

He and his companions left the bar at closing time along with Perez.   They brought a six-pack of beer with them.   As a practice the proprietor, Ms. Noriega, would sell patrons beer to take with them about 20 minutes before closing at night.   Guillen stated that Ruiz and Perez had not appeared angry with each other in the bar, but they were arguing as they left.   Florez testified that Ruiz and Perez had been in a “small argument” while inside the bar.   Guillen and his two friends got into their van, which was parked beside the building, but Perez hung onto the door, still arguing.   Ruiz turned on the van to leave, but Perez said he had a gun and began hitting Ruiz.   He pulled Ruiz from the van to the ground and was kicking him.   Ruiz was unconscious and could not move.   Guillen told Perez not to hit Ruiz anymore.   Perez then attacked him as well, pulling what was either a screwdriver or a knife.   He stabbed Guillen twice.   Guillen then pulled out his own knife and stabbed Perez, who then ran off.   Guillen then helped Ruiz into the van, and they drove off.   The fight occurred some 20 to 25 minutes after the bar had closed and Noriega and her sister had left for the night.

Perez died as a result of his wound and was discovered approximately one and one-half blocks from the bar.   Guillen pled guilty to a charge of voluntary manslaughter.

Luis Caballero bought the La Frontera Bar in 1978.   Caballero leased the bar to Noriega in March of 1983.   The bar only sells beer.   Caballero testified that the bar seats about 15 to 20 customers, while Noriega placed this figure at about 30.   He also stated that there is space for between 6 and 8 cars to park in front of the bar while Noriega said that there were only 5 parking places.   If that was not sufficient, people parked in the empty lot beside the building.

The lot did not belong to Caballero.   Sometimes he told people not to park there, but they did not all park elsewhere.   Noriega herself referred to the vacant lot next to the bar as the “parking lot” and stated that “a lot of” the patrons for the bar parked there.   The lot is not fenced and people assumed that they could park there;  she never told people whether to park there or not.   The lease did not include the vacant lot;  Noriega did not know who owned the lot.

During the five years that Caballero operated the bar, he had never hired anyone to provide security services and had never hired a bouncer.   He testified that in those five years there had never been any fights in the bar.   He did, however, recall an incident during which somebody fired a shotgun in the street outside the bar.   Someone took the gun away from that individual and gave the gun to Caballero.

Caballero had a written lease with Noriega.   Even though he lives behind the bar, he did not frequent the bar during the period in which she operated it.   He just went there every two weeks or once a month to collect his proceeds from the jukebox or make repairs.   He did not participate in the business after he leased it;  he let Noriega run it her way.   Caballero never told her that the bar was a dangerous place or that she should have security guards there.   He did not believe it was a dangerous place.   He was not aware of any fights in the bar while Noriega ran the business except for one occasion which was reported in the newspaper.   He was not aware of any fights which had taken place in the vacant lot next to the bar.

Noriega had leased the bar for a period of one year from Caballero.   She was the principal person involved in the operation of the bar, but her family members helped her as well.   She never discussed any alleged incidents of violence with Caballero.   She was not aware of any incidents involving fights or violence in the “vicinity immediately adjacent to the bar which is including the parking lot.”

Noriega did mention three incidents which resulted in calls to the police.   Once she called the police because a customer “just acted fresh with me.”   On another occasion there was a fight inside the bar, and one of the participants ran outside.   He then returned with a gun which he fired into the floor before running away.   On the third occasion, her brother was fighting with someone inside the bar, and her sister attempted to break it up.   Her brother mistakenly stabbed her sister.   In her responses to interrogatories, she also stated that there had been one occasion in which four brothers and their father had been asked to leave because they were creating a disturbance in the bar, but that no persons had ever been asked to leave because they had threatened acts of violence against patrons.

DISCUSSION

IWhether Summary Judgment in Favor of the Landowner, Caballero, was Proper.

Code of Civil Procedure section 437c, subdivision (c), provides in pertinent part that “[t]he motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” ¶  “Summary judgment is properly granted only when the evidence in support of the moving party establishes that there is no issue of fact to be tried.   [Citations.]  The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.”  (Lipson v. Superior Court (1982) 31 Cal.3d 362, 374, 182 Cal.Rptr. 629, 644 P.2d 822.)

“A defendant seeking summary judgment must establish that there are no triable issues of fact to support liability under any legal theory relied upon by the plaintiff.  [Citations.]  Any doubts regarding whether summary judgment should be granted must be resolved in favor of the party opposing the motion.”  (A. Teichert & Son, Inc. v. Superior Court (1986) 179 Cal.App.3d 657, 661, 225 Cal.Rptr. 10.)

Throughout their moving papers in the court below and in their briefs before this court, plaintiffs have combined the issues of the liability of the lessor of the commercial property, Caballero, and his lessee, Noriega.   In an apparent attempt to obfuscate, rather than address, the issue, they continued to do so in their reply brief even after Caballero devoted his entire response brief to a discussion of the difference in legal status between a lessor and a lessee with respect to the duty owed the lessee's business patrons on the leased premises.   This distinction is a critical one.

“Every one is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property․”  (Civ.Code, § 1714, subd. (a).)  In Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561, the California Supreme Court removed some of the common law exceptions to the rules which had worked to the benefit of landowners and applied the more generalized requirements of Civil Code section 1714 to situations in which a party alleged a breach of a duty of care on behalf of a property holder.   It held that “everyone is responsible for an injury caused to another by his want of ordinary care or skill in the management of his property.”  (Rowland, supra, at p. 119, 70 Cal.Rptr. 97, 443 P.2d 561.)

However, as one appellate court has explained, “while in Rowland the court found that possessors of land are subject to the duty of care set forth in section 1714, those who hold only nonpossessory interests in land have not been fully bound by its obligations․  Thus, in addition to showing actual knowledge of a dangerous condition, an injured person must also show that the landlord had the right and ability to cure the condition.”  (Leakes v. Shamoun (1986) 187 Cal.App.3d 772, 776, 232 Cal.Rptr. 171.)   This court has also stated, “Simply put, a landlord should not be held liable for injuries from conditions over which he has no control.”  (Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 512, 118 Cal.Rptr. 741.)

As the Supreme Court has pointed out, “Modern cases recognize that after Rowland, the duty to take affirmative action for the protection of individuals coming upon the land is grounded in the possession of the premises and the attendant right to control and manage the premises.”   (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 368, 178 Cal.Rptr. 783, 636 P.2d 1121.)   The high court again reaffirmed this distinction in Preston v. Goldman (1986) 42 Cal.3d 108, 227 Cal.Rptr. 817, 720 P.2d 476, where it explained that “Sprecher demonstrates that we have placed major importance on the existence of possession and control as a basis for tortious liability for conditions on the land.”  (Id. at p. 119, 227 Cal.Rptr. 817, 720 P.2d 476.)

The importance of control over the premises was discussed in Low v. City of Sacramento (1970) 7 Cal.App.3d 826, 87 Cal.Rptr. 173.   There, the court stated, “In common law parlance, the possessor of land is the party bearing responsibility for its safe condition.   Possession, in turn, is equated with occupancy plus control.  [Citations.]  Thus, in determining the party vulnerable to a verdict, control dominates over title.  [Citations.]”  (Id. at p. 831, 87 Cal.Rptr. 173.)   The Low court went on to explain that, “Generally, the tenant rather than the landlord controls the leased portion of the premises and is liable to third persons injured by their dangerous condition.  [Citations.]  The landlord is liable for the condition of areas over which he retains control, such as common passageways.”  (Id. at p. 832, 87 Cal.Rptr. 173.)

 The central question at hand is, therefore, whether Caballero retained control over any portion of the bar area or the parking lot so that liability may be imposed upon him.   Plaintiffs contend that he was in fact engaged in a sort of joint venture with Noriega because he was entitled to a portion of the proceeds from the jukebox and pool table and visited the bar to collect his money.   This argument is without merit.   The agreed rental was fixed at $450 per month plus one-half the gross proceeds derived from the pool table and the jukebox.   These monies collected were just part of the rent;  there was no common enterprise between Caballero and Noriega.

The lease specifically reserves to Caballero “ALL PREMISES OTHER THAN THE ‘BAR AREA’, SPECIFICALLY THE REAR HOUSING PORTION OF THE BUILDING OCCUPIED BY LESSOR AS A RESIDENCE, AND THE STORAGE AND GARAGE AREA AND THE SIDE YARD WITHIN THE FENCED AREA SOUTH OF THE BUILDING.”   Nowhere in the lease does Caballero reserve any right of control over the bar or the parking lot.

Furthermore, there is no evidence that Caballero exercised any control over the leased premises;  indeed, all the evidence is to the contrary.   He did not discuss the nature of the business with Noriega.   He let her run the bar her way.   He did not visit the bar as a patron but only went there to collect the proceeds from the jukebox or make repairs.   Neither is there any evidence that he exercised any control over the vacant lot next to the building.   He did not own the neighboring lot and sometimes told patrons not to park there because it was not his.

Because all the evidence indicated that Caballero neither retained control over the bar and parking areas nor attempted to exercise any such control, he did not owe a duty to Perez or any other bar patron to protect them from violent attack.   Therefore, the granting of the summary judgment in favor of defendant Caballero was proper.

II

Whether Summary Judgment in Favor of the Operator of the La Frontera Bar, Noriega, was Proper.

Noriega contends (1) that she owed no duty to Perez because the altercation occurred on land over which she exercised no control as it was adjacent to, rather than on, the bar property, and (2) that such an altercation occurring after the bar had closed was not foreseeable.

A. Whether the Fact that the Altercation Occurred Off the Leased Premises Precludes a Finding that Noriega Owed a Duty to Patrons to Protect Them from Foreseeable Risks of Harm.

 Noriega maintains that she did not owe Mr. Perez a duty of care.   The question here is whether the fact that the fight which led to Perez's death was adjacent to, rather than on, the business property precludes, as a matter of law, a finding that Noriega owed a duty to Perez.   Under these facts, it does not.

“Liability founded upon a claim of negligence cannot exist unless a duty of care is owed by the alleged wrongdoer to the person injured or to the class of which the injured person is a member.”  (Gomez v. Ticor (1983) 145 Cal.App.3d 622, 627, 193 Cal.Rptr. 600.)   Although a business proprietor is not an insurer of his patrons' safety, he “is required to exercise reasonable care for their safety and is liable for injuries resulting from a breach of this duty.”  (Taylor v. Centennial Bowl, Inc. (1966) 65 Cal.2d 114, 121, 52 Cal.Rptr. 561, 416 P.2d 793.)   As a general rule, “the proprietor of a place where intoxicating liquors are dispensed owes a duty of exercising reasonable care to protect his patrons from injury at the hands of fellow guests.”  (Saatzer v. Smith (1981) 122 Cal.App.3d 512, 518, 176 Cal.Rptr. 68.)

Defendant contends that the holding in Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal.App.3d 1142, 214 Cal.Rptr. 406 controls this situation, and therefore there was no duty owed to Perez.   Although there is strong language in Steinmetz which would support this position, the factual situation there is dissimilar from the case at hand.   In Steinmetz, summary judgment had been granted in favor of defendants Stockton City Chamber of Commerce (Chamber) and the California Human Development Corporation (CHDC) in an action for wrongful death arising out of the fatal stabbing of plaintiffs' decedent.   The Chamber and CHDC had hosted a series of “mixers” at various area businesses in order to promote commerce.   CHDC had hosted one such mixer on its own premises in an industrial park.   There was parking for only 20 to 25 vehicles at their location, but there was additional parking elsewhere in the industrial park.   Plaintiffs' decedent had parked her car approximately one block away from the CHDC premises but still within the park.   When she returned to her car after the mixer, she was fatally stabbed by an unknown assailant.

In upholding the summary judgment, the Third District Court of Appeal stated, “Plaintiffs have not cited nor are we aware of any case where a landowner was held responsible for injuries to an invitee from criminal activity occurring off the landowner's premises.”  (Steinmetz v. Stockton City Chamber of Commerce, supra, 169 Cal.App.3d at p. 1146, 214 Cal.Rptr. 406, original emphasis.)   The court went on to hold that a duty could not be imposed upon the defendants as that portion of the park in which the attack had occurred had been under the control of another tenant.   It explained that:

“CHDC had no right to station security guards on premises it neither owned nor controlled.   Nor did CHDC have any right to place lighting in any parking area other than its own parking area.   Moreover, neither CHDC nor Chamber had any right to control the activities of either their invitees or third parties where those activities occur off premises which they neither own, possess, nor control.   Under the facts here presented, there is simply no basis for finding that either CHDC or Chamber owed any duty of care to decedent while decedent was on premises neither owned, possessed, nor controlled by either defendant.”  (Id. at p. 1147, 214 Cal.Rptr. 406.)

As in the allocation of liability between a landowner and a tenant, control over the premises upon which the accident occurs is the crucial factor.  “The rule is that an invitor owes a duty to business invitees to use reasonable care as to all portions of the premises over which he has control, whether they be within the precincts of the building or on the outside and used by the general public in common with invitees.”  (Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394, 400, 170 P.2d 5;  accord Austin v. Riverside Portland Cement Co. (1955) 44 Cal.2d 225, 233, 282 P.2d 69.)  “Though the duty of care of the occupier of property arises from his right to control his own premises, such duty may be imposed when he invites intended customers to use, in conjunction therewith, another's property over which his right of control is, perhaps, more apparent than actual.”  (Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799, 804, 87 Cal.Rptr. 50.)  “A tenant may be liable for an area outside the strict limits of his own tenancy if he assumes control over it.”  (Low v. City of Sacramento, supra, 7 Cal.App.3d at p. 832, 87 Cal.Rptr. 173.)

In the case at bar, the property on which the altercation occurred was immediately adjacent to the bar premises, not a block away as in Steinmetz.   Noriega herself referred to the vacant lot as the “parking lot” and stated that “a lot of” her patrons parked there.   She explained that there was only room for about five cars to park in front of the bar while the capacity of the business is about thirty persons.   The lot is not fenced, and people just assumed that they could park there.   She never told her customers that they could not park there.

 Although these facts are not sufficient to establish as a matter of law that she did in fact exercise control over the neighboring property, they are sufficient to raise a factual issue of control such that the issue should be decided by a jury and not in a summary judgment proceeding.   Therefore, because control over the property is determinative of duty owed and because the plaintiffs introduced sufficient evidence to raise an issue as to whether or not Noriega exercised control over the vacant lot, the fact that the fight which resulted in Perez's death occurred on the lot adjacent to the bar, rather than on the leased premises, will not preclude a finding that Noriega may have owed some duty of care to Perez.

B. Whether Noriega Effectively Negated the Issue of Foreseeability of Harm to Perez.

Noriega next contends that because there had been no previous similar altercations and because the fight occurred after the bar had closed and in the parking lot, the act was not foreseeable.   She therefore maintains that she had no duty to protect Perez from harm.

In Rowland v. Christian, supra, our Supreme Court outlined the factors to be considered when making a determination as to whether or not to impose a specific duty of care on a possessor of land.   These considerations are as follows:

“[T]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.”  (Rowland v. Christian, supra, 69 Cal.2d at p. 113, 70 Cal.Rptr. 97, 443 P.2d 561.)

The most important of the Rowland factors is foreseeability.   (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 551 P.2d 334.)   Although a duty may be imposed on a possessor of land absent a determination as to several of these considerations, absent a finding that the injury was foreseeable, no duty may be charged to the defendant.

“A landowner is not an insurer of the safety of persons on his property.   He does, however, have a duty to take reasonable steps to protect invitees from foreseeable injury even to the extent of controlling the conduct of third parties.”  (Noble v. Los Angeles Dodgers, Inc. (1985) 168 Cal.App.3d 912, 914, 214 Cal.Rptr. 395, original emphasis.)   The duty “does not extend to controlling the misconduct of third persons which he has no reason to anticipate and no reasonable opportunity or means to prevent.”  (Rogers v. Jones (1976) 56 Cal.App.3d 346, 351, 128 Cal.Rptr. 404.)   However, a possessor of land may be liable for foreseeable injuries caused by the accidental, negligent or intentionally harmful acts of third persons.   (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 124, 211 Cal.Rptr. 356, 695 P.2d 653.)  “Foreseeability may be decided as a question of law only if, under the undisputed facts, there is no room for a reasonable difference of opinion.”  (Gregorian v. National Convenience Stores, Inc. (1985) 174 Cal.App.3d 944, 948, 220 Cal.Rptr. 302.)

 Noriega contends that because no one else had been killed in an altercation in her parking lot, the death was not foreseeable.   However, this alone is not determinative of duty.  “Proof of foreseeability is not limited to evidence of prior similar incidents, since such a rule precludes recovery to first-injured victims, and has been held to be inherently unfair and in contravention of public policy.”  (Gray v. Kircher (1987) 193 Cal.App.3d 1069, 1074, 236 Cal.Rptr. 891.)   Our Supreme Court expressly rejected the “prior similar incidents” rule in Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653, where it explained that the rule led to “arbitrary results and distinctions” and “improperly removes too many cases from the jury's consideration.”  (Id. at p. 126, 211 Cal.Rptr. 356, 695 P.2d 653.)   Therefore, the fact that on no prior occasion had a patron been attacked or stabbed in the vacant lot adjacent to the La Frontera Bar does not, in and of itself, negate the element of foreseeability as a matter of law.   It is, however, an important factor to be considered in making the determination as to whether or not the incident was foreseeable.

Because the foreseeability required to establish duty must be determined on a case-by-case basis (Beard v. Atchison, Topeka & Santa Fe Ry. Co. (1970) 4 Cal.App.3d 129, 137, 84 Cal.Rptr. 449), a review of the relevant facts is required.   Noriega contends that the lower court erred when it overruled certain evidentiary objections and in finding certain facts put forth by the plaintiffs to be true.   However, Noriega did not file a cross-appeal but only raised these issues in her response brief.  “It is the general rule that a respondent in whose favor a judgment is rendered is interested only in maintaining the judgment, and that he cannot on appeal of the opposite party ask a court of review to consider any errors against him.”  (Rapp v. Southern Service Co. (1931) 116 Cal.App. 699, 708, 4 P.2d 195;  see also Puritan Leasing Co. v. August (1976) 16 Cal.3d 451, 463, 128 Cal.Rptr. 175, 546 P.2d 679.)

There are few exceptions to this rule.  Code of Civil Procedure section 906, which was cited by Noriega, does not require a review of the evidentiary rulings in this case.  Section 906 provides in pertinent part:

“The respondent, or party in whose favor the judgment was given, may, without appealing from such judgment, request the reviewing court to and it may review any of the foregoing matters for the purpose of determining whether or not the appellant was prejudiced by the error or errors upon which he relies for reversal or modification of the judgment from which the appeal is taken.”

The use of the word “may” in Code of Civil Procedure section 906 places the decision of whether or not to address the evidentiary rulings within this court's discretion.  (California Teachers Assn. v. Governing Board (1977) 70 Cal.App.3d 833, 842, 139 Cal.Rptr. 155.)   In this particular case, such a course would serve no real purpose as much of the evidence presented by plaintiffs was not relevant to the issue of a duty on the part of Noriega.   A relevance analysis of that evidence is required, however, in order to determine if sufficient relevant facts were presented which would give rise to a triable issue of fact as to whether or not Noriega owed a duty to the decedent.

1. Police Reports

Plaintiffs submitted several police reports as exhibits in their opposition papers.   They contend that the facts within these reports establish that the La Frontera Bar had a history of violent activity and that Noriega had notice of that violence.

 The first four police reports, Nos. S1–13870, S2–11801, S3–01561 and S3–03049, all deal solely with incidents reported by Caballero which occurred before he leased the bar to Noriega.   Under the notice theory, these documents must be relevant to show that Noriega herself had notice of previous violent acts at the bar.   There is no evidence that Noriega was aware of any of these incidents.   Caballero testified that he never told Noriega that the bar was a dangerous place.   Noriega testified that she never discussed incidents of violence at the bar with Caballero and that he never told her that there had been numerous violent incidents at the bar.   Because there was no evidence that Noriega was aware of any of the incidents referred to in the documents, these police reports are not relevant to show that she had notice of these acts.

 Report No. S3–18641 was made by a patron, is inadmissible hearsay, and irrelevant on the issue of Noriega's knowledge.

 Report No. S4–03203 is the report of the killing of Perez, the plaintiffs' decedent.   As this is the incident which gave rise to this action, it cannot be used to show that Noriega had notice of a dangerous condition before the killing occurred.   It, as well, is not relevant to show that Noriega had notice of any facts which would give rise to any duty on her part.

Noriega personally reported four incidents.   The first, No. S3–09230, involves a report of an assault and battery on her during which a customer “had struck her on her left buttock while she was standing at the pool table.”   This apparently refers to the incident which she explained in her deposition when she had called the police because one man “just acted fresh with me.”   The second, No. S3–12690, is the report of a burglary in which 15 cases of beer and $200 were stolen.   In the third, No. S3–16422, Noriega reported that three of her tires had been slashed while her car was parked in front of the bar.   In the last, No. S3–18194, Noriega reported an incident in which a man first threatened another customer and then fired a shotgun in front of the bar.

 Of these four police reports, the first, No. S3–09230, does not have sufficient probative value to tend to show notice of crime or violent acts.   Although it is a complaint for battery, that incident, offensive as it may have been, is not of the type from which a reasonable person would be put on notice that a crime or other violent activity would possibly occur on the premises.   Therefore, it is not relevant to the issues at hand.   The second and third, Nos. S3–12690 and S3–16422, did not deal with violent acts against patrons but could be relevant to show that Noriega had notice of other crimes on the premises.   Only the last, No. S3–18194, deals directly with an altercation between patrons and is relevant to the issue of notice of prior such acts at the La Frontera Bar.

 Therefore, report No. S3–12690, the burglary, and report No. S3–16422, the slashed tires, provided facts which were relevant as some indication of prior criminal activity in the area of the bar.   Report No. S3–18194, the man arguing with a patron and then firing a shotgun outside the bar, was relevant as showing notice of a previous altercation at the bar.

 Report No. S3–12254 was made by Noriega's brother, Hector Villareal, who helped her in the bar.   On July 23, 1983, during the course of making a report of a disturbance in the bar, Hector told the investigating officer from the Stanislaus County Sheriff's Department “that on Friday and Saturday night it is no [sic ] uncommon to have 15 to 20 or 25 fights at this bar.   He said its become a [sic ] very uncontrollable and that he would like to see additional patrol in the area․  He again dwelled on the fact that there are many fights at this bar and sometimes there are weapons used in the fights.   He's concerned that someone is going to be injured or killed in one of these fights․”  Inasmuch as Noriega testified that Hector helped her out in the bar, Hector's statement contained in this report would constitute an authorized admission under Evidence Code section 1222 and, as such, was admissible against Noriega.   It could also be reasonably inferred that if Hector was aware of such circumstances, Noriega must have had knowledge of them.   The report was relevant to show Noriega's knowledge of the extent of prior disturbances in the bar.

2. Preliminary Hearing Testimony of Roman Bescerra Flores

 Noriega also contended that the preliminary hearing testimony of Roman Bescerra Flores was improperly admitted.   Flores only testified that there had been a “small argument” with Perez inside the bar.   This vague comment is not relevant to prove that Noriega should have been on notice of potential violence such that she owed a duty to Perez to take reasonable steps to protect him from harm.

3. Declaration of Fernando Chavez

Noriega also objected to the declaration of Fernando Chavez, one of the attorneys for the plaintiffs, more particularly to the portions in which he attempts to establish a sufficient foundation for the admission into evidence of certain photographs and states that the lighting in the parking lot was inadequate.   Specifically, he declares:

“Attached to this declaration are also four color photographs which were taken in the early part of April 1984.   I was present during the time that these photographs were taken and that such photographs accurately depict the premises and surrounding areas of the ‘La Frontera Bar’ where decedent Luis Perez died on February 19, 1984.   As these photographs portray, there are no lights anywhere near the bar or parking area sufficient to light the area of the parking lot where decedent was killed.  [¶] The above-stated facts are within my personal knowledge and, if called as a witness in this action I could competently testify thereto.”

 There was no showing that the scene as photographed in April was the same as it was on the night in February when Perez was killed.   As such the photographs lack foundation and are not relevant for the purposes of trying to establish inadequate lighting.   Furthermore, when Mr. Chavez speaks to the sufficiency of the lighting, he is rendering an opinion, not relating a fact within his personal knowledge.   There was no showing of any special knowledge, skill, experience, training, or education on his part which would qualify him as an expert as required by Evidence Code section 720.   “The sufficiency of an affidavit must be tested by the same rules as those applicable to oral testimony.”  (McLellan v. McLellan (1972) 23 Cal.App.3d 343, 359, 100 Cal.Rptr. 258.)   An affidavit that recites only ultimate facts or conclusions of law is thus insufficient.”  (Thomas J. Palmer, Inc. v. Turkiye Is Bankasi A.S. (1980) 105 Cal.App.3d 135, 148–149, 164 Cal.Rptr. 181, original emphasis.)  “Ordinarily, affidavits containing no more than conclusions and opinions are insufficient.”  (Reida v. Lund (1971) 18 Cal.App.3d 698, 702, 96 Cal.Rptr. 102.)   Finally, any asserted issue as to supposedly inadequate lighting is purely a red herring and not relevant in this particular case.   The decedent had been conversing with the other parties before he left the bar.   The only evidence was that he himself initiated the confrontation.   Lighting is only relevant in cases where darkness provides a cover for known or foreseeable criminal activity, not where a fight erupts between acquaintances.   Therefore, the photographs and attendant declaration of Mr. Chavez are not relevant to a determination of whether or not a duty was owed to Perez.

4. Statement of Rosario Caballero

 Finally, Noriega objected to the statement of Rosario Caballero and the declaration of Philip J. Camilleri which purported to lay the foundation for the admission of this document.   First, the Caballero statement was inadequate as there was no declaration of personal knowledge as required by Code of Civil Procedure section 437c, subdivision (d), which states that “[s]upporting and opposing affidavits or declarations shall be made by any person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.”   But more importantly, again there was no showing that any of this information as to acts which allegedly occurred while the Caballeros owned the bar was in any way communicated to Noriega so that she could be charged with having notice of these alleged occurrences.   The statement is not relevant to the issue of foreseeability by Noriega of any harm.

In light of the foregoing, the evidence which was possibly relevant to the issue of whether or not Noriega could have foreseen the events which transpired in her parking lot during the early morning of February 19, 1984, was contained in report No. S3–12690, the burglary;  report No. S3–16422, the slashed tires;  report No. S3–18194, the man firing a shotgun outside the bar;  and report No. S3–12254, made by Hector Villareal concerning the extent of disturbances at the bar.   Added to this is Noriega's own testimony which could be relevant on the issue of foreseeability.   She related that, on one occasion, there was a physical fight inside the bar during which one of the participants ran outside and returned with a gun which he fired once against the floor.   She also testified that there was one incident during which her brother had been fighting with someone else in the bar and her sister tried to hold him, resulting in her brother stabbing her sister by accident.

Furthermore, Noriega testified that, as a practice, she would sell beer to people about 20 minutes before closing so that they could take it with them.   Her sister, Becky Villareal, testified that patrons would sometimes stay on in the parking lot after the bar closed and continue to drink and converse for a while before going home.

Therefore, there was evidence that Noriega had knowledge of many previous fights, disturbances and minor crimes at the bar as well as evidence that Noriega knew customers would occasionally linger on the premises and drink after the bar was closed.   It is on these facts, therefore, that a determination of foreseeability must be made.

The crux of this case is the determination of the reasonable boundaries of foreseeability.   Foreseeability has been defined as “the risk reasonably within the range of apprehension, of injury to another person, that is taken into account in determining the existence of the duty to exercise care.”  (46 Cal.Jur. (3d ed. 1978) § 10, p. 152.)   Our Supreme Court has held that “ ‘one is not bound to foresee every possible injury which might occur, or every possible eventuality, but only those which were reasonably foreseeable․’ ”  (Tucker v. Lombardo (1956) 47 Cal.2d 457, 464–465, 303 P.2d 1041.)   The Supreme Court has also used a “reasonable likelihood” test when evaluating the foreseeability of intentional wrongful misconduct on the part of third parties.  (Richardson v. Ham (1955) 44 Cal.2d 772, 777, 285 P.2d 269.)   “The duty of foreseeability of accidents is limited to those things which are reasonably probable,” not merely possible.  (Campbell v. Magana (1960) 184 Cal.App.2d 751, 763, 8 Cal.Rptr. 32.)

In Gomez, the plaintiff had been shot by a robber when he came upon the crime in progress inside the defendant's parking structure.   He died a few weeks later as a result of the gunshot.   The defendant argued that the attack had not been foreseeable because no similar attack had occurred.   The plaintiff had introduced evidence as to the general unsafe character of the neighborhood as well as previous thefts and other nonviolent crimes.   The reviewing court stated, “Standing alone, plaintiffs' evidence of the frequency of violent crimes in the neighborhood does not establish sufficient foreseeability to warrant the imposition of a duty.”  (Gomez v. Ticor, supra, 145 Cal.App.3d at p. 628, 193 Cal.Rptr. 600.)   The court went on to hold that even though there was insufficient evidence to establish foreseeability as a matter of law, the acts of theft and vandalism which had occurred in the parking structure were sufficient to raise a question of fact as to the foreseeability of attack.   It stressed that, even if foreseeability were proved, the duty would be a minimal one but nevertheless reversed the summary judgment.

In Gregorian, the court looked at the compendium of recent cases dealing with the duty of a possessor of land to protect those on his premises from the criminal acts of third persons.   It summarized them by stating:

“Those cases, including Isaacs, which hold the proprietor liable for the wrongful acts of third persons stress that the proprietor is not the insurer of the safety of persons on those premises and his duty to take affirmative action to control the criminal acts of third persons arises only where the possessor has reasonable cause to anticipate such acts and the probability of injury resulting therefrom, and fails to take affirmative steps to control the wrongful conduct.”  (Gregorian v. National Convenience Stores, Inc., supra, 174 Cal.App.3d at pp. 948–949, 220 Cal.Rptr. 302.)

 In the instant case, there was admissible evidence that Noriega had knowledge of many previous fights, disturbances and crimes at the bar and evidence that she knew customers would occasionally linger on the adjacent parking lot after closing hours to drink beer purchased at the bar.   As in Gomez, this showing is not sufficient to hold that foreseeability of injury, occurring after closing hours on the adjacent parking lot, was established as a matter of law.   However, it is sufficient to create a triable issue on the question of foreseeability.

DISPOSITION

The judgment of dismissal in favor of Luis Caballero is affirmed.   The judgment of dismissal in favor of Nohemi Villareal Noriega is reversed.   The parties to bear their own costs on appeal.

FOOTNOTES

1.   Ms. Noriega is also referred to in various parts of the record as Nohemi Villareal.

BEST, Associate Justice.

WOOLPERT, Acting P.J., and MARTIN, J., concur.