Greko LLC, et al. v. Hector Martinez dba Panther Protective Services, et al.

A motion for summary adjudication proceeds “in all procedural respects as a motion for summary judgment.” [Code Civ. Proc. § 437c, subd. (f)(2).] The initial burden always rests on the moving party to make a prima facie showing that no material factual issues are in dispute. [Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 453.] Courts follow a threestep process when reviewing a motion for summary adjudication: (1) identify the issues outlined by the pleadings; (2) evaluate whether the moving party has disproved the opponent’s claims; and (3) assess if the opposition has shown there is a triable factual issue. [Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.]

To meet the burden of showing that a cause of action cannot be established, a defendant must demonstrate that the plaintiff lacks the necessary evidence and cannot reasonably obtain it. [Aguilar, 25 Cal.4th at 854.] Merely pointing out the lack of evidence is insufficient. [Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.] Supporting evidence may include affidavits, declarations, admissions, depositions, answers to interrogatories, and matters subject to judicial notice. [Aguilar, 25 Cal.4th at 855.] Also, a plaintiff’s lack of opposition does not justify granting a motion for summary adjudication if the defendant cannot meet its initial burden of proof. [Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1087.]

Even if the moving defendant meets its burden, the opposing plaintiff can still defeat a summary judgment or summary adjudication motion by presenting evidence that raises a triable issue of fact. [Aguilar, 25 Cal. 4th at 849-850.] The plaintiff cannot rely solely on allegations or denials in its pleadings; instead, it must present specific facts establishing a triable issue of material fact regarding the cause of action. [Code Civ. Proc. § 437c, subd. (p)(2); Choochagi, 60 Cal.App.5th at 453.] If the plaintiff fails to do so, summary judgment or summary adjudication should be granted. [See Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.]

The court must liberally construe the evidence presented by the party opposing summary judgment or adjudication, resolving all doubts and making all reasonable inferences in that

party's favor. [Aguilar, 25 Cal.4th at 844-845.] When reviewing such a motion, the court must consider what inferences a factfinder could reasonably draw that favor the opposing party. [Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.] The main role of the court is to identify issues, not to decide them; only clear and indisputable inferences can lead to a legal resolution. [Ibid.] If evidence conflicts, factual disputes must be resolved during trial. [Ibid.] Furthermore, the trial court cannot weigh evidence as a factfinder would to determine credibility, nor can it grant summary judgment based on credibility assessments. [Id. at 840.]

Discussion.

A. First Cause of Action for General Negligence.

Defendant’s motion to summarily adjudicate MLCP’s First Cause of Action for general negligence is GRANTED.

The undisputed evidence establishes that MLCP sustained no damages arising from the cannabis thefts occurring on April 4, 2022, April 25, 2022, and June 13, 2022. Defendant presents evidence that the thefts targeted the tenants. [Defendant’s Separate Statement of Undisputed Material Facts (“Defense Fact(s)”) 1.12-1.14, 2.12-2.14, 3.12-3.14, and 4.12-4.14.] And MLCP undertook no action in response. [Defense Facts 1.20-1.21, 2.20-2.21, 3.20-3.21, and 4.20-4.21.] MLCP owner Nader Agha testified that MLCP joined the lawsuit only because the affected tenant requested it, and MLCP did not consider itself damaged by the incidents. [Defense Facts 1.22, 2.22, 3.22, and 4.22.] Under Fields v. Napa Milling Co. (1958) 164 Cal.App.2d 442, 447-448, negligence requires proof of actual damages, and nominal damages are insufficient. Defendant’s evidence on lack of damages stands unrebutted.

Additionally, the contractual economic loss rule bars MLCP’s negligence claim because MLCP and Defendant are in privity of contract. [Defense Fact 1.3.] Any alleged losses stem from alleged negligent performance of contractual duties. [Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 922-923.]

Finally, Defendant provides evidence of proper contract performance, including gate access control, incident reporting, and the absence of any unauthorized vehicle entry. [Defense Facts 1.3, 1.11-1.14, 1.20-1.23, 3.4-3.9, 3.12-3.14, and 3.16-3.18.] MLCP provides no evidence of breach.

Accordingly, Defendant has met their summary-adjudication burden [Code Civ. Proc. § 437, subd. (p)(2)], and MLCP has offered no contrary evidence. Summary adjudication of the negligence cause of action is GRANTED.

B. Third Cause of Action for Breach of Contract.

Defendant’s motion to summarily adjudicate MLCP’s Third Cause of Action is GRANTED.

First, Defendant’s argument that MLCP alleged no contractual damages is incorrect; the SAC alleges building repairs, lost rents, tenant reimbursements, and loss of cannabis goods. [SAC at ¶ BC-4.] Defendant therefore did not meet his burden on the theory of lack of damages.

However, Defendant separately argues that summary adjudication is proper because Defendant did not breach any contractual duties owed to MLCP. Defendant provides evidence that they performed all obligations under the Security Services Agreement, including controlling access, maintaining logs, and reporting incidents to MLCP management. [Defense Facts 4.4-4.9, 4.12-4.14, and 4.16-4.18.]

MLCP filed no opposition and presents no evidence of breach. The undisputed evidence shows no triable issue of material fact regarding Defendant’s performance of the contract. Under D’Arrigo Bros. of Cal. v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800, breach of contract requires evidence of breach; none exists here.

On the Third Cause of Action, Defendant’s motion is GRANTED.

Conclusion.

Defendant’s motion for summary adjudication of the First and Third Causes of Action is GRANTED. Defendant shall prepare the Proposed Order consistent with this Tentative Ruling.

Defendant’s Motion for Summary Judgment/Adjudication Against Greko and GON

Defendant Hector Martinez, dba Panther Protective Services (“Defendant”), moves for summary judgment or, alternatively, summary adjudication of the negligence and breach of contract claims brought by Plaintiffs Greko LLC (“Greko”) and GON Inc. (“GON”) (collectively, “Plaintiffs”). Defendant argues that there was no duty, breach, or causation; that the economic loss rule bars recovery; and that Plaintiffs lack contractual standing. GON opposed the motion; Greko did not. After reviewing the papers supporting and opposing the motion, the Court finds that Defendant failed to meet its initial burden under Code of Civil Procedure section 437c, particularly regarding causation, the scope of duty, breach, and the applicability of the economic loss rule. Triable issues of material fact exist as to both Plaintiffs. Accordingly, the motion is DENIED.

Defendant’s request for judicial notice of the Second Amended Complaint (“SAC”) is GRANTED. [Evid. Code § 452, subd. (e).] The Court will take judicial notice of the SAC’s existence, but not the truth of its allegations. [Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482.]

Finally, Defendant’s evidentiary objections are SUSTAINED IN PART AND OVERRULED IN PART.

Legal Standard.

Summary judgment or adjudication is warranted where there are no triable issues of material fact, and the moving party is entitled to judgment as a matter of law. [Code Civ. Proc. § 437c, subds. (c), (f); see Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.]

Courts follow a three-step process when reviewing a motion for summary judgment or adjudication: (1) identify the issues outlined by the pleadings; (2) evaluate whether the moving party has disproved the opponent’s claims; and (3) assess if the opposition has shown there is a triable factual issue. [Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.]

A motion for summary adjudication proceeds “in all procedural respects as a motion for summary judgment.” [Code Civ. Proc. § 437c, subd. (f)(2).] The initial burden always rests on the moving party to make a prima facie showing that no material factual issues are in dispute. [Choochagi v. Barracuda Networks, Inc. (2020) 60 Cal.App.5th 444, 453.] When a defendant files for summary judgment or adjudication, they satisfy their initial burden if they prove that at least one element of the cause of action cannot be established or that a complete defense exists. [Code Civ. Proc. § 437c, subd. (p)(2).] Failure to meet this burden results in denial of the motion, ending the inquiry. [Id.]

To meet the burden of showing that a cause of action cannot be established, a defendant must demonstrate that the plaintiff lacks the necessary evidence and cannot reasonably obtain it. [Aguilar, 25 Cal.4th at 854.] Merely pointing out the lack of evidence is insufficient. [Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.] Supporting evidence may include affidavits, declarations, admissions, depositions, answers to interrogatories, and matters subject to judicial

notice. [Aguilar, 25 Cal.4th at 855.] Also, a plaintiff’s lack of opposition does not justify granting a motion for summary adjudication if the defendant cannot meet its initial burden of proof. [Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1087.]

Even if the moving defendant meets its burden, the opposing plaintiff can still defeat a summary judgment or summary adjudication motion by presenting evidence that raises a triable issue of fact. [Aguilar, 25 Cal. 4th at 849-850.] The plaintiff cannot rely solely on allegations or denials in its pleadings; instead, it must present specific facts establishing a triable issue of material fact regarding the cause of action. [Code Civ. Proc. § 437c, subd. (p)(2); Choochagi, 60 Cal.App.5th at 453.] If the plaintiff fails to do so, summary judgment or summary adjudication should be granted. [See Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.]

The court must liberally construe the evidence presented by the party opposing summary judgment or adjudication, resolving all doubts and making all reasonable inferences in that party's favor. [Aguilar, 25 Cal.4th at 844-845.] When reviewing such a motion, the court must consider what inferences a factfinder could reasonably draw that favor the opposing party. [Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.] The main role of the court is to identify issues, not to decide them; only clear and indisputable inferences can lead to a legal resolution. [Ibid.] If evidence conflicts, factual disputes must be resolved during trial. [Ibid.] Furthermore, the trial court cannot weigh evidence as a factfinder would to determine credibility, nor can it grant summary judgment based on credibility assessments. [Id. at 840.]

Defendant’s Evidentiary Objections.

Objection No. 3 (Kouvaras Decl. at ¶ 6) is SUSTAINED for lack of personal knowledge. [Evid. Code § 702.] Objection Nos. 1-2 and 4 (Kouvaras Decl. at ¶¶ 3, 7) are OVERRULED. Objection Nos. 5-10 (Avramidis Decl. at ¶¶ 3-8) are OVERRULED.

Discussion.

A. First Cause of Action for General Negligence.

The SAC’s First Cause of Action for negligence alleges that Plaintiff Moss Landing Commercial Park LLC (“MLCP”), the landlord, hired Defendant to provide security services, including services for the building occupied by tenants Greko and GON. [Defendant’s Separate Statement of Undisputed Material Facts (“Defense Fact(s)”) 1.1-1.5 and 1.10-1.11.] The portions of the Property rented by GON/Greko were robbed on April 4, April 25, and June 13, 2022, resulting in the theft of cannabis and cannabis paraphernalia. [Defense Facts 1.12-1.14.] As detailed below, Defendant’s motion for summary adjudication of the First Cause of Action is DENIED.

1. Duty.

Defendant argues that it is entitled to summary adjudication as a matter of law because it was under no duty to control the criminal conduct of third parties. This argument is

unpersuasive, especially because it was previously raised and rejected in the demurrer stage. “By contracting with [a] business to provide security services, the security guard creates a special relationship between himself and the business’s customers.” [Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 199-200.] This special relationship is not the basis of absolute liability; the question is whether the security guard acted reasonably in light of a foreseeable risk. [Id. at 202.]

Beyond that, GON has demonstrated triable issues of material fact regarding the nature and scope of Defendant’s assumed duties. Defendant asserts that its security obligations were limited to gate-access control. [Defense Fact 1.4.] However, the security contract requires Daily Activity Reports and the provision of a 4x4 utility vehicle “to perform inspections.” The Daily Activity Report submitted by Defendant shows actual patrol activity. [GON Response to Defense Fact 1.4; GON Separate Statement of Undisputed Material Facts (“GON Fact(s)”) 1-2.] These facts create a triable dispute over the scope of duties undertaken.

2. Causation.

Defendant argues that the causation analysis in Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 776, applies. The analysis there assumed a duty and breach of duty before the court determined that the failure to provide increased security or functioning locked gates was not a substantial factor in the injury because plaintiff was unable to show that her assailants were unauthorized to enter the property, given the history of gang tenants and the violence of those tenants. [Ibid.] Likewise, Defendant argues that there is no evidence that the vehicles involved in the alleged thefts were “unauthorized.” [Defense Fact 1.4.]

However, Defendant presents no undisputed fact on this point and no evidence. Defense Fact 2.24 merely recites that incident reports were filed regarding the two thefts in April 2022. Defense Fact 2.27 recites that no incident report was filed regarding the June “2023” theft. Defendant presented no evidence regarding the facts of the June 13, 2022, incident. Absent such evidence, Defendant fails to negate causation and thus fails to shift the burden to Plaintiffs.

Defendant has failed to meet its burden of proving causation for negligence and breach of contract (even assuming third-party beneficiary status). Thus, the burden never shifted to GON to demonstrate a triable issue of material fact. Accordingly, even though Greko did not oppose the motion, the motion is also denied as to Greko because Greko bears no burden to show a triable issue of material fact.

3. Economic Loss Rule.

The record does not support Defendant’s argument that the economic loss rule bars negligence. GON alleges loss of tangible property—cannabis product—not mere economic loss. [Aas v. Superior Court (2000) 24 Cal.4th 627, 635 (“Speaking very generally, tort law provides a remedy for construction defects that cause property damage or personal injury.”).] Further, the rule ordinarily applies between contracting parties; GON is not in direct privity.

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Because Defendant failed to carry its initial burden on duty, breach, causation, or the economic loss rule, summary adjudication of negligence is DENIED.

B. Breach of Contract Cause of Action.

Defendant argues Plaintiffs have no standing because they were not contracting parties and not intended beneficiaries. [Defense Facts 1.2-1.3, 1.28, 2.2-2.3, 2.28, 3.2-3.3, 3.38, 4.2-4.3, 4.28, 5.2-5.3 and 5.28.] However, GON presents a triable issue of material fact. [See Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 821 (“[U]nder California's third party beneficiary doctrine, a third party — that is, an individual or entity that is not a party to a contract — may bring a breach of contract action against a party to a contract only if the third party establishes not only (1) that it is likely to benefit from the contract, but also (2) that a motivating purpose of the contracting parties is to provide a benefit to the third party, and further (3) that permitting the third party to bring its own breach of contract action against a contracting party is consistent with the objectives of the contract and the reasonable expectations of the contracting parties.”).]

First, the contract’s purpose—to secure the commercial park—necessarily benefits tenants storing valuable inventory. [Plaintiff’s Response to Defense Fact 1.9, 2.9, 3.9, 4.9, and 5.9.] Second, Plaintiffs requested security services and paid for them as part of Common Area Maintenance charges. [Ibid.] These facts preclude summary adjudication on privity or beneficiary status.

Defendant’s argument that no breach occurred mirrors its negligence argument. As discussed above, Defendant failed to present evidence negating breach—specifically failing to present evidence that the thieves’ vehicles were authorized, or that access control obligations were fulfilled. [GON Response to Defense Fact 1.4; GON Facts 1-2.] Thus, Defendant did not meet its summary-adjudication burden.

C. Plaintiff Greko.

Although Greko did not file an opposition, Defendant still must meet its initial summaryadjudication burden. [Code Civ. Proc. § 437c, subd. (p)(2); Thatcher, 79 Cal.App.4th at 1087.] Because the same evidentiary deficiencies apply to Greko, and Defendant failed to shift the burden, the motion must likewise be denied as to Greko.

Conclusion.

Defendant’s motion is DENIED as to both Greko and GON. Defendant failed to meet its threshold burden to negate duty, breach, causation, contractual standing, or to establish any complete defense. Triable issues of material fact remain across all causes of action.

Greko and GON shall submit a Proposed Order consistent with this Tentative Ruling.

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