Trovato v. Je CA2/3 ( 2021 )

Filed 1/27/21 Trovato v. Je CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
DANIEL TROVATO et al., B301033
Plaintiffs and Appellants, Los Angeles County
Super. Ct. No. BC592184
v.
WHANKUK JE,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Stephen I. Goorvitch, Judge. Affirmed.
The Law of Office of Roland Ho and Roland Ho for
Plaintiffs and Appellants.
Marh & Associates and Rosa Kwong for Defendant and
Respondent.
_______________________________________
INTRODUCTION
Daniel Trovato1 and James Coberly (collectively, plaintiffs)
sued Whankuk Je, the owner of Rookies Sports Bar (Rookies),
and Valarina Pedicini, as trustee of the Valarina Pedicini Trust,
the owner of the land where Rookies is located2 (collectively,
defendants), after plaintiffs were assaulted outside of the bar by
one of the bar’s other customers. Defendants moved for summary
judgment, asserting they didn’t owe a duty to protect plaintiffs
because the assault was not foreseeable. The court granted the
motion and entered judgment in defendants’ favor. Plaintiffs
appeal, arguing the summary judgment motion was procedurally
flawed and a triable issue exists as to whether defendants owed
plaintiffs a duty to ensure their safety on the night of the attack.
We affirm.
FACTS AND PROCEDURAL BACKGROUND
1. The Assault
Je owns Rookies, a bar in La Mirada. Je is not involved in
the day-to-day operation or management of the bar, nor does he
visit the bar very often. Instead, Je hired his ex-girlfriend Hye
Kyung Son, who goes by Katherine, to “run[] everything” and
“take[] care of all the management.” Prior to the assault in this
case, Je wasn’t aware of any criminal activity at the bar. Nor was
1 Trovato’s last named is also spelled as “Trovator” in the reporter’s
transcript.
2After filing their appeal but before briefing was finished, plaintiffs
settled with, and dismissed their appeal as to, Pedicini. Accordingly,
Pedicini is no longer a party to this appeal.
2
Katherine aware of any past incidents of violence involving the
bar.
According to Katherine, the bar usually has a doorman on
Friday and Saturday nights if it’s busy enough. The doorman is
responsible for checking customers’ identification, making sure
drunk people don’t enter the bar, and “maintain[ing] peace within
the bar.”
On a Saturday night in mid-July 2014, Trovato and Coberly
went to Rookies. A doorman wasn’t working that night because
business was “slow.” When plaintiffs were there, the bar had nine
security cameras. While at least one of the cameras was installed
inside the bar and directed at the area where the bartender
worked, it is unclear where the other cameras were located.
Sometime after midnight, Coberly went outside to smoke a
cigarette. Coberly was smoking near the entrance when Antonio
Rodriguez, who also was a customer at the bar, went outside and
started talking to him. Trovato followed Rodriguez out of the bar.
Trovato and Coberly “exchanged pleasantries” with Rodriguez.
After Rodriguez went inside for a few moments, he came
back out and started talking to Trovato and Coberly again.
Rodriguez then walked to a “blacktop-like alleyway” adjacent to
the bar, at which point he said to plaintiffs, “ ‘Hey, come check
this out.’ ”3 As Trovato approached, Rodriguez asked him, “ ‘Do
3 Security footage from inside the bar shows Coberly’s and Trovato’s
interaction with Rodriguez while they’re standing outside near the
front entrance. The footage shows Rodriguez, Coberly, and Trovato
walk to the left of the front entrance, if looking from inside the bar
facing the door, presumably toward the “blacktop-like alleyway,” before
the three men leave the screen. A little more than a minute after the
men walk off screen, Rodriguez runs back inside the bar and appears
3
you think you can kick my ass?’ ” When Coberly followed,
Rodriguez asked him if he was Trovato’s “pussy protector.”
Coberly was confused and didn’t know how to respond. Rodriguez
then attacked Trovato and punched Coberly in the face, knocking
him out. When Coberly regained consciousness he was outside
sitting against a building while a crowd surrounded Trovato, who
was lying in a pool of blood.
2. The Lawsuit
Trovato and Coberly sued Rookies, Je, and Pedicini for
negligence.4 As to Rookies and Je, plaintiffs alleged they
breached their duty to ensure plaintiffs’ safety because prior to
the underlying assault Je or the bar’s management was aware, or
should have been aware, that incidents of violence occurred on or
near the bar’s property, but nevertheless failed to: (1) install
security cameras around the area where the attack occurred; (2)
have a security guard on duty the night of the attack; (3) control
customers who go in and out of the bar to smoke; (4) maintain
and monitor a safe area where customers can smoke while
drinking at the bar; and (5) establish reasonable procedures that
could have tracked prior similar incidents of violence that
occurred at or near the bar.
Defendants moved for summary judgment, arguing they
owed no duty to plaintiffs to provide heightened security
to say or signal something to his friends before running out of view of
the camera. The footage has no audio.
4 Although Rookies is listed as a separate defendant and identified in
the complaint as both a corporation and a sole proprietorship owned
and controlled by Je, judgment was entered only in favor of Je as an
individual and doing business as Rookies.
4
measures at the bar because Rodriguez’s assault was not
foreseeable and, in any event, plaintiffs assumed any risk of
harm by agreeing to follow Rodriguez to the location of the
attack. Plaintiffs opposed summary judgment, arguing, among
other things, the assault was foreseeable because incidents of
violence had occurred at Rookies prior to the underlying assault
and, in light of those prior incidents, defendants failed to take
any reasonable measures to ensure plaintiffs’ safety while
smoking outside near the bar’s entrance. Plaintiffs also argued
they didn’t assume any risk of harm when they agreed to follow
Rodriguez to the location of the attack because there was no
indication that Rodriguez was going to beat up the plaintiffs.
In support of their opposition, plaintiffs submitted, among
other things, copies of logs from the Los Angeles Sheriff’s
Department tracking what appear to be emergency calls and
dispatch notes concerning various types of incidents that
occurred near the bar’s location between January 1, 2010 and
May 31, 2015. Although they included a declaration from the duly
authorized custodian of records authenticating the logs, plaintiffs
didn’t submit any evidence explaining who made the documented
calls, why those calls were made, and what evidence, if any, was
found to corroborate the calls.
Plaintiffs also submitted a copy of a report from a sheriff’s
detective who interviewed one of the bartenders about a day after
the assault. The bartender claimed he was at the bar, but not
working, on the night of the assault.5 He didn’t see the attack,
however, because he was outside on a different side of the
5At her deposition, Katherine testified that the bartender was working
that night.
5
building smoking a cigarette. When he came back inside, he saw
two men leave the bar “in a hurry.” He then walked out the front
door and saw a group of people standing near an alley, where
Trovato was lying on the ground “bleeding profusely from the face
and head.” The bartender tended to Trovato until paramedics
arrived.
The bartender recognized Rodriguez from a photograph.
According to the bartender, Rodriguez was the “most aggressive”
of the group of people Rodriguez was drinking with that night.
Following a hearing, the court issued a written ruling
granting summary judgment in defendants’ favor.6 The court
found defendants met their initial burden to show Rookies owed
no duty to protect plaintiffs from Rodriguez’s assault and that
plaintiffs failed to raise a triable issue of fact as to that issue.
Specifically, the court found there was no evidence to support a
finding that defendants or anyone who worked for the bar were
aware that Rodriguez was likely to engage in violent behavior on
the night of the incident or had engaged in violent behavior in the
past, or that prior incidents of violence had occurred at the bar,
requiring defendants to provide heightened security measures on
the night of the assault.
6 The court sustained plaintiffs’ objections to the assertions in
defendants’ separate statement of undisputed facts that plaintiffs
shared two pitchers of beer and had five shots of liquor and that
Coberly was drunk at the time of the assault. The court also sustained
defendants’ objection that call logs from the Sheriff’s Department lack
foundation and personal knowledge to the extent “they are based on
narrations from third parties.” The court overruled defendants’
objection to the call logs to the extent they “are admissible to prove
that the police responded to the bar, as well as the fact of any arrest.”
The court did not rule on any of defendants’ other objections.
6
The court entered judgment in defendants’ favor. Plaintiffs
appeal.
DISCUSSION
1. General Principles of Summary Judgment and
Standard of Review
A court may grant summary judgment where no triable
issue of material fact exists and the moving party is entitled to
judgment as a matter of law. (Merrill v. Navegar, Inc. (2001) 26
Cal.4th 465, 476 (Merrill).) A defendant who moves for summary
judgment must show that one or more elements of the plaintiff’s
claim cannot be established or that there exists a complete
defense to the claim. (Code Civ. Proc.,7 § 437c, subd. (p)(2).) If the
defendant makes a sufficient showing, the burden shifts to the
plaintiff to present evidence establishing a triable issue of
material fact. (Ibid.) A triable issue of fact exists if the evidence
would allow a reasonable trier of fact to find in favor of the party
opposing summary judgment. (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850 (Aguilar).)
We independently review a trial court’s ruling on a motion
for summary judgment. (Aguilar, supra, 25 Cal.4th at p. 860.) We
liberally construe the evidence in favor of the opposing party and
resolve all doubts about the evidence in that party’s favor.
(Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th
1138, 1142.) We consider all evidence the parties submit in
connection with the motion, except that which the court properly
excluded. (Merrill, supra, 26 Cal.4th at p. 476.)
7All undesignated statutory references are to the Code of Civil
Procedure.
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2. Plaintiffs forfeited their claim that service of the
motion for summary judgment was defective.
As a threshold matter, plaintiffs insist we must reverse the
order granting summary judgment because service of the motion
was untimely under section 437c, subdivision (a)(2) and
effectuated via e-mail, a method of service to which plaintiffs did
not consent. Although plaintiffs challenged the method of service
of the motion in the trial court, they never argued service was
untimely. (See Credit Suisse First Boston Mortgage Capital, LLC
v. Danning, Gill, Diamond & Kollitz (2009) 178 Cal.App.4th
1290, 1301 [statutorily mandated minimum notice period for
summary judgment may be waived by the parties].) Issues that
could have been but were not raised in the trial court are
generally forfeited on appeal. (Woodridge Escondido Property
Owners Assn. v. Nielsen (2005) 130 Cal.App.4th 559, 576.)
Plaintiffs fail to explain why they did not or could not challenge
the timeliness of the motion’s service in the trial court. We
therefore decline to address that issue on appeal.
As for plaintiffs’ contention that the order granting
summary judgment must be reversed because they never
consented to electronic service, we reject that argument for a
couple of reasons. First, plaintiffs cite no authority to support
their argument that the form of service was improper. Although
they cite to section 437c, subdivision (a)(2), and three cases
interpreting that statute, that provision and the cited cases
discuss only when a summary judgment must be served. (See
Frazee v. Seely (2002) 95 Cal.App.4th 627, 636–637; McMahon v.
Superior Court (2003) 106 Cal.App.4th 112, 116; Urshan v.
Musicians’ Credit Union (2004) 120 Cal.App.4th 756, 764–765.)
While that statute establishes notice periods for service via mail,
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facsimile, or other forms of “delivery,” it says nothing about
whether a motion may be served electronically without the
opposing party’s consent. (See § 437c, subd. (a)(2).) By failing to
cite any relevant authority, plaintiffs have not adequately
developed this argument. (See Dietz v. Meisenheimer &
Herron (2009) 177 Cal.App.4th 771, 799 [appellant’s failure to
support claim with reasoned argument and citations to authority
permits the reviewing court to treat that claim as waived].)
Second, plaintiffs opposed the summary judgment motion
on the merits in the trial court and never asked for a continuance
or asserted they were prejudiced by the method of service utilized
by defendants. Nor do plaintiffs explain in their appellate briefs
how they were prejudiced by defendants’ purported electronic
service of the motion.8 Plaintiffs, therefore, forfeited any
challenge to the method of service of the summary judgment
motion in this case. (Carlton v. Quint (2000) 77 Cal.App.4th 690,
697 [plaintiffs’ opposition to the summary judgment motion on
the merits and their failure to request a continuance or assert
they were prejudiced by the improper service of the motion
waived any claims that the service of the motion was defective];
see also Cal. Const., art. VI, § 13 [“No judgment shall be set aside
… in any cause … for any error as to any matter of procedure,
unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error
complained of has resulted in a miscarriage of justice”].)
8We note that the proof of service states that the summary judgment
motion was served by personal service, not electronic service, on
February 1, 2019. We also note that although the hearing was
originally scheduled for April 3, 2019, plaintiffs agreed to continue it to
April 22, 2019, and the hearing was conducted on May 1, 2019.
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3. The trial court did not err in granting summary
judgment.
To establish a claim of negligence, a plaintiff must show the
defendant owed the plaintiff a legal duty and the defendant’s
breach of that duty caused the plaintiff’s damages or injuries.
(Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666,
678 (Ann M.), disapproved on another ground in Reid v. Google,
Inc. (2010) 50 Cal.4th 512, 527, fn. 5 (Reid).) The primary issue in
this case is whether Rookies owed plaintiffs a duty to protect
them from Rodriguez’s assault.
As a general rule, defendants don’t owe a duty to protect
others from the criminal acts of third parties. (Delgado v. Trax
Bar & Grill (2005) 36 Cal.4th 224, 234–235 (Delgado).) It is well
settled, however, that businesses, such as restaurants, bars, and
shops, owe a duty to their patrons to maintain their premises in a
reasonably safe condition and 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.’ [Citations.]” (Id. at p. 235, italics omitted.)
The scope of a business’s duty to protect its patrons from
third party crime is “ ‘determined in part by balancing the
foreseeability of the harm against the burden of the duty to be
imposed. [Citation.] “ ‘[I]n cases where the burden of preventing
future harm is great, a high degree of foreseeability may be
required. [Citation.] On the other hand, in cases where there are
strong policy reasons for preventing the harm, or the harm can be
prevented by simple means, a lesser degree of foreseeability may
be required.’ [Citation.]” ’ [Citation.]” (Castaneda v. Olsher (2007)
41 Cal.4th 1205, 1213–1214 (Castaneda).)
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As the Supreme Court explained in Delgado, the duty to
hire security guards, to provide improved lighting, to install
security cameras, or to require existing personnel to patrol the
business’s premises generally requires a high degree of
foreseeability before it may be imposed on a business. (Delgado,
supra, 36 Cal.4th at pp. 238, 239–240.) To prove there was a
heightened foreseeability of third-party criminal activity on a
business’s premises, the plaintiff must provide evidence of “prior
similar incidents or other indications of a reasonably foreseeable
risk of violent criminal assaults in that location.” (Id. at p. 240.)
The existence and scope of a business’s duty to protect against
third party criminal acts and the foreseeability necessary to
establish that duty are questions of law for the court to resolve.
(Castaneda, supra, 41 Cal.4th at p. 1213; Ann M., supra, 6
Cal.4th at p. 678.)
Defendants met their initial burden to negate the duty
element of plaintiffs’ negligence claim. Je testified that he wasn’t
aware of any criminal activity occurring on or near the bar’s
property prior to Rodriguez’s assault. Katherine, the bar’s
manager, also testified that she wasn’t aware of any prior
incidents of violence at the bar and that none of the bar’s
employees had ever reported any similar incidents. Thus,
defendants presented evidence that Rodriguez’s assault was not
foreseeable and, as a result, Rookies did not owe plaintiffs a duty
to utilize heightened security measures to protect them from that
assault. (Sharon P. v. Arman, Ltd. (1999) 21 Cal.4th 1181, 1189–
1199, disapproved on another ground in Reid, supra, 50 Cal.4th
at p. 527, fn. 5 [owner of commercial garage owed no duty to
plaintiff who was raped in the garage to hire security guards,
install improved lighting, reinstall video cameras, or require
11
existing employees to patrol the property where there was no
evidence of similar crimes occurring on the property in the past].)
The burden, therefore, shifted to plaintiffs to present
evidence that Rodriguez’s assault was sufficiently foreseeable to
require Rookies to provide security measures that would have
prevented the attack. Plaintiffs failed to meet that burden
because they didn’t present evidence of prior similar criminal acts
occurring at or near Rookies or “other indications of a reasonably
foreseeable risk of violent criminal assaults” at the bar. (Delgado,
supra, 36 Cal.4th at p. 240.)
As for the Sheriff’s Department’s call logs, those documents
don’t raise a triable issue concerning the foreseeability of
Rodriguez’s assault. While those documents support a finding
that calls were made to the Sheriff’s Department concerning
potential criminal conduct occurring around the bar, they do not,
by themselves, support a finding that the conduct actually
occurred or that Je, Katherine, or anyone else employed by the
bar at the time of Rodriguez’s assault was aware of those
incidents. For instance, plaintiffs didn’t present evidence to
establish context for the calls, such as who made them and
whether any evidence was found to confirm the alleged conduct
actually occurred. And while some of the call logs involve alleged
violent conduct occurring around Rookies, nothing in the logs
indicates that Je, Katherine, or any of the employees who worked
for the bar at the time of the assault in this case were notified of
that conduct. In any event, plaintiffs concede in their opening
brief that the logs themselves cannot be used to prove the
incidents alleged in the documented calls actually occurred.
Plaintiffs presented no other evidence that would support a
finding that similar criminal conduct occurred at or near Rookies
12
such that Rodriguez’s assault would have been foreseeable to Je,
Katherine, or anyone employed by the bar at the time plaintiffs
were attacked.
Nor did plaintiffs present evidence that Rodriguez’s assault
was otherwise foreseeable. At their depositions, both Coberly and
Trovato testified that, prior to the assault, Rodriguez appeared
friendly and jovial when they first met him outside the bar. And
nothing in the video footage of plaintiffs’ interaction with
Rodriguez preceding the assault suggests Rodriguez was likely to
engage in violent activity. Indeed, in opposing defendants’ claim
that they assumed the risk of the assault, plaintiffs repeatedly
took the position that the attack was not foreseeable because of
Rodriguez’s gregarious behavior immediately before the assault.
While plaintiffs presented the detective’s report in which one of
the bartenders stated he recognized Rodriguez because he was
the most “aggressive” of the group of men he left the bar with on
the night of the attack, the bartender did not explain in what way
Rodriguez appeared to be “aggressive,” nor did he tell the
detective that he saw Rodriguez engage in any threatening or
violent behavior that would have made the assault foreseeable.
We also reject plaintiffs’ argument that because Rookies
sometimes employed a doorman on Friday and Saturday nights,
the bar had a duty to employ a doorman on the Saturday night
when plaintiffs were attacked. Defendants introduced
uncontradicted evidence that the bar did not have a policy of
employing a doorman every Friday and Saturday night. Rather,
as Katherine testified, the bar’s policy was to employ a doorman
only on nights when it was busy enough to do so. Because
business was slow on the night of the attack, the bar opted not to
use a doorman. In any event, it is the foreseeability of third-party
13
criminal activity, not the business’s history of employing
bouncers or other security measures, that determines whether
the business had a duty to use such measures at the time a
patron was injured by third-party conduct on the business’s
property. (See Delgado, supra, 36 Cal.4th at pp. 247–250.)
Because there was no evidence to support a finding that
Rodriguez’s assault was foreseeable, Rookies did not owe
plaintiffs a duty to employ a doorman on the night of the attack.
In short, defendants met their initial burden to negate the
duty element of plaintiffs’ negligence claim. Plaintiffs failed to
raise a triable issue that Rodriguez’s assault was sufficiently
foreseeable such that Rookies owed plaintiffs a duty to employ
heightened security measures on the night of the attack, like
hiring a doorman or installing additional security cameras. The
court, therefore, properly granted summary judgment in Je’s
favor.
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DISPOSITION
The judgment is affirmed. Je is awarded costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
LAVIN, J.
WE CONCUR:
EDMON, P. J.
EGERTON, J.
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