Franco v. Sec. Indus. Specialists, Inc.

1

DIANE FRANCO et al., Plaintiffs and Appellants, v. SECURITY INDUSTRY SPECIALISTS, INC., et al., Defendants and Respondents.

B304976

California Court of Appeals, Second District, Third Division

November 2, 2021

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County No. BC635188, Robert B. Broadbelt, Judge. Reversed and remanded.

Nelson & Fraenkel, Stuart R. Fraenkel, Gabriel S. Barenfeld Gabriel Beugelmans; Law Offices of Savin & Bursk and Adam J. Savin for Plaintiffs and Appellants.

Wesierski & Zurek, Ronald Zurek and Lynne Rasmussen for Defendants and Respondents.

LAVIN Acting P. J.

INTRODUCTION

Anthony R. Pineda and Diane Franco (Parents) sued, among others, Star World Plaza (Plaza), the Plaza's owners George Younan and Ratiba Younan, and Wayne Ng, ^[1] the Plaza's property manager for negligence, premises liability, and wrongful death, after the Parents' son, Anthony V. Pineda (Anthony), was killed during an armed robbery while he was working as a security guard and receptionist at an unlicensed marijuana dispensary in the Plaza. The Landlords moved for summary judgment claiming they owed no duty of care to Anthony because the armed robbery was not foreseeable and, in any event, the Parents could not prove the lack of additional security measures contributed to Anthony's death. The court granted summary judgment in the Landlords' favor, and the Parents appealed.

Under the circumstances of this case, we conclude the Landlords owed Anthony a duty to provide minimally burdensome security measures-a reinforced security door and commercial grade lock-inside the dispensary. We also conclude there is a triable issue of fact concerning whether the Landlords' failure to provide these security measures contributed to Anthony's death. We therefore reverse the judgment.

FACTS AND PROCEDURAL BACKGROUND

1. The Property

George and Ratiba Younan own the Plaza, a commercial strip mall in the City of San Bernardino. Ng is the Plaza's property manager. Ng handles all of the property's day-to-day management, including negotiating and executing lease agreements with new tenants, collecting rent payments from existing tenants, and hiring security services to monitor the property.

In November 2014, the Landlords agreed to lease one of the Plaza's units to Ernesto Atanacio III to operate the "House of OG," a medical marijuana dispensary. According to the lease agreement, the unit was to "be used exclusively as a Medical Marijuana Dispensary in compliance with state regulations." When the lease agreement was executed, and through the events leading to this lawsuit, it was illegal to operate marijuana dispensaries in San Bernardino.^[2]

Atanacio agreed to pay $4, 000 per month for the first three months of rent, with the amount of rent increasing to $5, 000 per month for the remainder of the lease. When he signed the lease agreement, Atanacio paid the Landlords $18, 000, consisting of a $10, 000 non-refundable security deposit and the first two months of rent. The amount of rent the Landlords charged Atanacio was significantly higher per square foot than what they charged other tenants in the Plaza.^[3]

2. Prior Incidents of Violence at the Plaza

Before the House of OG opened, the Landlords leased retail space in the Plaza to another medical marijuana dispensary. Although there were no reported incidents of violence involving the other dispensary, there were at least seven reported robberies and thefts on the Plaza's property between 2012 and 2014. And, about four months before the House of OG opened, a person was killed in a gang-related shooting in the Plaza's parking lot. A few months later (but before leasing property to the House of OG), Ng hired a security company to patrol the Plaza's parking area at night.

3. The Shooting at the Dispensary

One evening in February 2015, Anthony was working as an armed security guard and receptionist at the House of OG. Anthony was the only security guard on duty. He was working in the store's product room, which was separated from the front lobby by a sliding glass window and a "thin paneled unreinforced" door that was connected to an "electronic locking mechanism."

Shortly before the House of OG was supposed to close that night, two men armed with guns entered the dispensary's lobby. They opened the interior door separating the lobby from the product room and shot and killed Anthony as he tried to prevent them from accessing the product room. The lock on the interior door wasn't working when Anthony was killed.

4. The Lawsuit

The Parents filed a lawsuit against, among others, Star World Plaza, the Younans (in their individual capacities and as co-trustees of the Younan Family Trust), and Ng, asserting claims for negligence, wrongful death, and premises liability, all arising out of Anthony's death during the February 2015 shooting at the House of OG. The Parents claimed the Landlords were responsible for Anthony's death because they leased retail space to an illegal marijuana dispensary, they knew the Plaza attracted violent criminal conduct, and they failed to provide adequate security measures to protect tenants and invitees, like Anthony, from such conduct.

The Landlords^[4] filed separate summary judgment motions. In support of their motions, the Landlords submitted the Parents' responses to special interrogatories and requests for admissions. Ng and George Younan submitted declarations in which they testified that they were unaware of any violent crime that had occurred on the Plaza's property before Anthony was killed at the House of OG.

The Landlords argued they didn't owe Anthony a duty to protect him from third-party criminal conduct because they were unaware of any prior criminal conduct at the Plaza, rendering the shooting at the dispensary unforeseeable. As for causation, the Landlords claimed the Parents couldn't present any non-speculative evidence to support a finding that additional security measures would have prevented the shooting that killed Anthony.

The Parents opposed both motions. They contended the February 2015 shooting at the House of OG was foreseeable because a marijuana dispensary was an obvious target for robberies and several violent crimes on the Plaza's property had been reported in the three years before the dispensary opened. The Parents claimed the Landlords could have prevented Anthony's death by refusing to lease premises in the Plaza to an illegal marijuana dispensary or, in the alternative, by enacting more effective security measures at the dispensary, including: (1) hiring a second armed guard to protect the outside of the dispensary and the dispensary's lobby; (2) ensuring the dispensary was equipped with a working video surveillance system that covered the exterior and interior of the dispensary's unit; (3) installing a steel security door equipped with a commercial grade keypad lock with a deadbolt and reinforcer separating the product room from the lobby; and (4) installing bullet proof glass between the lobby and the receptionist. The Parents also argued there were triable issues of fact as to whether the Landlords contributed to Anthony's death by leasing retail space to an illegal and inherently dangerous business and by failing to provide more effective security measures on the House of OG's premises.

In support of their oppositions, the Parents submitted, among other things, police reports and photographs from the investigation of the shooting at the House of OG, excerpts of transcripts from the criminal trial of the defendants suspected of shooting Anthony, and excerpts of the transcripts from Ng's and George Younan's depositions.^[5] In one of the police reports, the investigating officer observed that the lock on the unreinforced door separating the House of OG's lobby from the product room had malfunctioned and the store's interior and exterior security cameras weren't recording any footage at the time of the shooting. And two of the employees who were working at the dispensary at the time of the shooting testified that the suspects were able to force open the door between the lobby and the product room before they shot Anthony.

The Parents also submitted declarations from Rudy Petersen, a police officer and security specialist, addressing the industry standards for security measures at marijuana dispensaries. According to Petersen, it would have cost: (1) about $55 per hour to hire a second armed guard; (2) about $100 per month to operate working video surveillance equipment; (3) about $1, 000 to install a bullet resistant steel security door with a commercial grade keypad lock; and (4) between $50 to $150 per square foot for a bullet proof window.^[6] The court granted the Landlords' summary judgment motions. The court found the Landlords didn't owe Anthony a duty to protect him from third-party criminal conduct. Specifically, the court found the shooting in this case was not sufficiently foreseeable to require the Landlords to provide any of the Parents' proposed security measures because there had been no similar incidents of violence involving a marijuana dispensary on the Plaza's property in the past. The court also rejected the Parents' claim that the Landlords' conduct was negligent per se because they knowingly leased retail space to a marijuana dispensary in violation of local ordinances outlawing such businesses. As for causation, the court found the Parents failed to establish a triable issue of fact that the Landlords' failure to provide additional security measures at the House of OG contributed to Anthony's death.

The court entered judgment in the Landlords' favor. The Parents appeal, challenging both orders granting summary judgment.

DISCUSSION

1. ...