STEVEN WILLIAMS v. H&S ENERGY, LLC et al.

Objections to Evidence. In ruling on a motion for summary adjudication the court need only rule on those evidentiary objections that it deems material to its disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)

Plaintiff’s declaration submitted in support of opposition to this motion states that his girlfriend told him that there was a security guard at the subject gas station. Plaintiff’s declaration also states that he relied on this information in choosing to get gas at the subject station. However, in response to H&S’s special interrogatories asking Plaintiff to state all facts supporting the contention that H&S provided security upon which he relied Plaintiff replied that he had no information that H&S provided security services. His claim now that he had heard there was a guard and relied upon that contradicts his verified discovery responses and may not be used to create a triable issue of material fact on summary judgment. (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087.)

H&S’s objections #1 and #2 are sustained.

Premises Liability: Acts of Third Parties. Premises liability is a form of negligence and so requires proof of the existence of a duty owed to the plaintiff, breach thereof, and resulting damages to the plaintiff. (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207.) In a premises liability cause of action the duty in question arises from possession and control of property and compels the owner to avoid exposing persons to unreasonable risks of harm. (Coyle v. Historic Mission Inn Corp. (2018) 24 Cal.App.5th 627, 634; Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)

Regarding the particular concept of premises liability, it is well established that a business proprietor owes a duty to his patrons to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures, due the special relationship that exists between proprietor and patron. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 (Delgado).) The degree of foreseeability required to impose a particular protective duty is commensurate with the burden that duty imposes; notably, a heightened foreseeability of third party criminal acts on the premises is required before a proprietor will bear a duty to provide security guards. (Id. at pp. 240, 243-244.)

Merely choosing to have a security program, even one with a roving security guard, does not itself signify that a proprietor has assumed a duty under the special relationship doctrine to protect patrons from third party violence. (Id. at p. 249.)

The undisputed facts establish heightened foreseeability of gun violence at the subject gas station supporting a duty for H&S to provide security. In November 2017, about three and a half years before Plaintiff was shot in May 2021, a man with a gun robbed the cash register in the convenience store at the relevant gas station. (H&S’s Undisputed Material Facts (“H&S UMF”) #24-25.) H&S’s attempts to distinguish that incident from Plaintiff’s are not convincing. Though the man robbed an employee inside the convenience store rather than a customer at the pumps and did not fire his gun the November 2017 robber still gave H&S heightened foreseeability that gun violence was a risk at the subject gas station.

Plaintiff’s robbers did not initially fire their firearms to rob him either, only shooting him when he attempted to recover his property. (H&S UMF #15-16, 21.) The incidents are highly similar.

However, H&S’s undisputed material facts establish that Plaintiff cannot prove that the absence of its security guard, who was contracted to roam between the subject gas station and two others belonging to H&S, caused Plaintiff’s harm. Even had the guard been present, he would have been inside the convenience store and not at the pumps where Plaintiff was attacked. (H&S UMF #29.) The guard’s duties did not include intervening to stop violent crime. (H&S UMF #28.)

The court notes that Plaintiff stated a dispute to H&S UMF #28 on the bases of the deposition testimony of the relevant security company’s person most knowledgeable and the contract between H&S and the security company. The court finds this is not an effective dispute to the proffered fact. The cited testimony of the person most knowledgeable supports that the guard’s duties were only to observe and report unlawful conduct to law enforcement and the purpose of the guard’s presence was to protect store employees.

Plaintiff advises that the security services contract states that security agents “will respond to and manage any emergencies involving guests or staff of [H&S].” (Declaration of John Fitzpatrick Vanucci in Support of Opposition to Summary Judgment at ¶ 2, Exhibit 1.) However, further examination of that contract reveals that the cited language is in the “scope” section, which despite its name does not deliver a controlling description of guards’ duties. The “services” section and the “scope” section alike state that the “post instructions” section details all of the duties the guards bear.

The “services” section specifically states that guards will not have any requirement or willingness to protect anyone’s life or property unless the “post instructions” specifically say so. The “post instructions” then say that guards will provide strong customer service, be “highly visible to deter theft, burglary and protect store employees,” will apprehend shoplifters but are not to stop shoplifters they did not personally witness see take anything, will work with law enforcement to report crimes, and will give reports to H&S on request.

Nothing there specifically says that the guards are obligated or willing to do anything to intervene in an armed robbery.

Therefore Plaintiff’s dispute is not effective and it is undisputed fact on this motion that guards were posted to deter and apprehend shoplifters and only observe and report other crimes rather than intervene. (H&S UMF #28.)

Plaintiff does not raise a triable issue of material fact in response to H&S’s undisputed facts. Plaintiff has only speculation that the presence of the guard would have prevented his harm. Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284 (Mukthar) does not compel a finding as a matter of law that the presence of a security guard stops crime. Other, more authoritative precedent expressly holds to the contrary. See, for example, Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 777, stating that “assaults and other crimes can occur despite the maintenance of the highest level of security.” Additionally, Mukthar does not even so hold.

In Mukthar a 7-11 convenience store employee dealing with two obstreperous customers observed them about to leave the store with unpaid merchandise. (Mukthar, supra, 139 Cal.App.4th at pp. 286-287.) The employee physically blocked the door and was punched in the face. (Id. at p. 287.) The store’s security service was supposed to have had a guard on duty whose usual post was right by the door. (Ibid.) The appellate court found that the service was negligent in its undertaking of providing a guard as it offered no reason why its guard, who was supposed to be at his post per contract, was not. (Id. at p. 290.)

Mukthar spoke to the negligent undertaking doctrine, related to but distinct from the special relationship doctrine now being applied in analysis of the instant case (further addressed below). Regardless, Mukthar does not hold that the presence of an armed guard prevents crime as a matter of law. The Mukthar court held that while the employee’s injuries were caused in the strictest sense by the woman punching him in the face the causation question to answer was whether the assault would or would not have taken place had the guard been standing at his post one foot away from the door where the assault took place. (Id. at pp. 290-291.) “It is more likely than not,” said the court, “that the woman would not have hit Mukthar in the face in the close proximity of an armed guard who had the ready means at hand to respond physically to violence.” (Id. at p. 291.)

The Mukthar court repeatedly emphasized that the guard would have been standing next to the employee and the woman. The distinction is obvious: in this case, even had the guard been present, he would have been inside the convenience store and not at the pumps where Plaintiff was attacked. (H&S UMF #29.) There is no holding as a matter of law that the presence of security guards in an area prevents crime.

Granted, the guard would have been in the vicinity of the assault if not right there next to Plaintiff and he would have been able to perceive the assault in the parking lot from his Mukthar-style post at the convenience store door. (P UMF #4.) Granted, too, the incident occurred over about a minute, which is much longer than the several seconds of the assault outside a football stadium in Stokes v. Forty Niners Stadium Management Co., LLC (2024) 107 Cal.App.5th 1199, 1226 that offered no realistic possibility of security intervention. But Plaintiff has only speculation that the guard, even if he had seen the incident, would have come out and stopped the robbery.

Plaintiff cannot prove his negligence claim against H&S via the special relationship doctrine.

Negligent Undertaking. The doctrine of negligent undertaking is related to but distinct from the doctrine of a business owner’s special relationship to patrons imposing on him a duty to protect persons from the acts of third parties. (Delgado, supra, 36 Cal.4th at pp. 248-249.) Where the special relationship doctrine imposes a duty on the business owner to take reasonable steps to secure common areas against foreseeable acts of third parties that are likely to occur in the absence of such precautions, the negligent undertaking doctrine holds that a volunteer otherwise under no duty of care who undertakes to provide protective services will have a duty to exercise due care in providing that protection if the volunteer’s failure to exercise due care increases the risk of harm to the person or the person reasonably relies on the volunteer’s protection, to his injury. (Id. at pp. 235, 249.)

Plaintiff raised the concept of negligent undertaking in his complaint. At lines 22-27 on page 4 the complaint states that Defendants provided security upon which Plaintiff relied to his harm and which increased the risk of harm suffered. This language apprised H&S of the theories it must now answer on summary judgment. Indeed H&S recognized the presence of the negligent undertaking theory because it propounded discovery on Plaintiff asking him to provide the facts supporting his contention that there was security present upon which he relied, as seen above in discussing H&S’s objections to Plaintiff’s evidence. As said, Plaintiff’s claim that he relied on the presence of security is meritless. He contradicts interrogatory responses flatly stating that he had no knowledge of a security guard. However, the “increased risk of harm” concept must still be explored.

The facts presented to the court do not show any way in which H&S’s roving security guard contract increased the risk of harm to Plaintiff or caused Plaintiff’s harm. Causation analysis is the same as above: had a guard been posted at the gas station the night of May 8, 2021 it still cannot be said that Plaintiff’s harm would have been prevented. Here, though, on negligent undertaking analysis, Plaintiff is also unable to prove that H&S’s undertaking increased the risk of him getting robbed and/or shot.

H&S’s security undertaking did not create any new peril. (See University of Southern California v. Superior Court (2018) 30 Cal.App.5th 429, 450 [failing to enforce campus policy against rowdy frat parties did not increase risk of harm from party; disapproved on other grounds in Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 222 at fn. 9]; City of Santee v. County of San Diego (1989) 211 Cal.App.3d 1006, 1015-1016 [increased risk element not satisfied where defendant merely fails to eliminate preexisting risk].) The likelihood of armed robbery at the subject gas station was not increased by H&S’s use of a roaming security guard as opposed to a world in which H&S did not provide any form of security.

Plaintiff speculates that the robbers knew the guard was only there on a roving basis and chose to strike when he was away but this is pure speculation. Not only that, this speculation if accepted would still not establish that robbery became more likely because H&S employed a roaming guard than it would have been had H&S not undertaken to provide security at all.

Plaintiff cannot prove his negligence claim against H&S via the negligent undertaking doctrine.

Conclusion. H&S’s motion for summary judgment is granted.

PORTELLO v. GENERAL MOTORS, LLC