Morris v. De La Torre

• Decision Date: 30 June 2005
• Docket Number: No. S119750.,S119750.
• Citation: 36 Cal.4th 260,113 P.3d 1182,30 Cal.Rptr.3d 173
• Court: California Supreme Court
• Parties: Charles E. MORRIS IV, Plaintiff and Appellant, v. Silvino DE LA TORRE, Defendant and Respondent.

30 Cal.Rptr.3d 173

36 Cal.4th 260

113 P.3d 1182

Charles E. MORRIS IV, Plaintiff and Appellant, v. Silvino DE LA TORRE, Defendant and Respondent.

No. S119750.

Supreme Court of California.

June 30, 2005.

Estey & Bomberger and Stephen J. Estey, San Diego, for Plaintiff and Appellant.

Robinson, Calcagnie & Robinson and Sharon J. Arkin, Newport Beach, for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Appellant.

Daniels, Fine, Israel & Schonbuch, Mark R. Israel; Clements & Knock, Thomas V. Clements, Debra A. Stevens, San Diego, and Michael M. Linley, for Defendant and Respondent.

Deborah J. La Fetra and Paul J. Beard II, Sacramento, for Pacific Legal Foundation as Amicus Curiae on behalf of Defendant and Respondent.

GEORGE, C.J.

As observed in the companion case, Delgado v. Trax Bar & Grill (June 30, 2005, S117287) 36 Cal.4th 224, 30 Cal. Rptr.3d 145, 113 P.3d 1159, 2005 WL 1529656 (Delgado), courts long have recognized that businesses such as restaurant proprietors have a "special relationship" with their patrons or invitees, and that this relationship imposes upon the proprietor a duty to take reasonable measures to protect such persons against foreseeable criminal attack (id., 36 Cal.4th at pp. 235-236, 30 Cal.Rptr.3d 145, 113 P.3d 1159). Specifically, as we stated in Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 59 Cal.Rptr.2d 756, 927 P.2d 1260 (Kentucky Fried Chicken), with respect to "ongoing" criminal conduct that occurs in the presence of a restaurant proprietor, there is a duty to warn or "take such appropriate action as is reasonable under the circumstances to protect patrons" and invitees. (Id., at p. 823, 59 Cal.Rptr.2d 756, 927 P.2d 1260, italics added.)

We granted review in this matter to consider the Court of Appeal's determination that plaintiff, who was injured by third party criminals in the parking lot of defendant's all-night restaurant while defendant's employees watched from inside, stood in a special relationship with defendant, and that defendant's duty to take "such appropriate action as is reasonable under the circumstances" obligated the restaurant's employees to telephone 911 on plaintiff's behalf. We agree with the Court of Appeal that a special relationship existed and that it imposed upon defendant, through its employees, such a duty, and that there exists a triable issue of fact concerning whether defendant breached that duty when his employees failed to make a 911 telephone call to summon aid for plaintiff. Accordingly, we shall affirm the judgment of the Court of Appeal, which in turn reversed the trial court's grant of summary judgment for defendant.

I

Because plaintiff's appeal is from a trial court order granting summary judgment for defendant, we independently examine the record to determine whether there exist triable issues of fact warranting reinstatement of the action. (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142, 12 Cal.Rptr.3d 615, 88 P.3d 517 (Wiener).) In order to prevail in an action based upon a defendant's alleged negligence, a plaintiff must demonstrate that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of his or her injuries. (Ibid.) "We have recently observed that ... amendments to Code of Civil Procedure section 437c ... place the initial burden on the defendant moving for summary judgment and shift it to the plaintiff upon a showing that the plaintiff cannot establish one or more elements of the action." (Wiener, supra, 32 Cal.4th at p. 1142, 12 Cal.Rptr.3d 615, 88 P.3d 517.)

Accordingly, in this matter we must determine whether defendant has shown that plaintiff has not established a prima facie case of negligence. In making that assessment on review of a grant of summary judgment for defendant, we view the evidence in the light most favorable to plaintiff as the losing party below. (Wiener, supra, 32 Cal.4th at p. 1142, 12 Cal. Rptr.3d 615, 88 P.3d 517.)¹

II

Defendant Silvino De La Torre is the proprietor of Victoria's Mexican Food, a 24-hour restaurant located in a small shopping center in San Diego's Nestor area. At the time relevant here (in mid-2000), the other five businesses in the center generally maintained only daytime business hours. A parking area located directly in front of the restaurant serves the entire shopping center. Under the terms of his lease, defendant enjoys nonexclusive use of the entire parking lot and pays 20 percent of the maintenance costs for that common area.² The restaurant has an approximately 40-foot-wide storefront of large plate glass windows that afford an unobstructed view of the parking area; the restaurant posts advertising in the windows that can be read from the parking lot. A narrow dining section is located in the front of the restaurant interior. A standard-height counter separates that area from an open kitchen. At one end of the counter is a gate at counter height, allowing access from the dining area to the open kitchen. At the other end of the counter, between the counter and the kitchen, a private telephone is mounted on a wall below counter height.

At approximately 1:00 a.m. on August 1, 2000, plaintiff Charles E. Morris IV, along with his friends Bonilla, Rhodes, Miranda, and Gallegos, arrived in Gallegos's car and parked in the described area immediately outside the restaurant. Miranda and Rhodes entered the restaurant to purchase food while plaintiff, Gallegos, and Bonilla waited outside. Plaintiff, a frequent customer of the restaurant, had a stomachache and did not plan to eat.

At about this time Richard Cuevas and Saul De La Vega arrived by car and parked near plaintiff and his companions. Cuevas and De La Vega were members of the Nestor Street gang. Apparently, neither plaintiff nor any of his friends were gang members. Cuevas, approximately six feet tall and bare chested (with the word "Nestor" tattooed on his chest in three-inch letters), approached plaintiff and his companions in a hostile manner and asked where they lived. Immediately thereafter Rhodes and Miranda emerged from the restaurant, and Rhodes attempted to calm Cuevas by offering to shake hands. Cuevas replied that he was "Lobo from Nestor" and was not there to make friends. When plaintiff responded that he was from Imperial Beach, Cuevas punched him, at which point plaintiff's companions began to fight in defense of plaintiff. De La Vega threw two unopened cans of beer at plaintiff and his companions and began to rip off his own shirt; Cuevas ran into the restaurant, yelling to its employees in Spanish slang that he wanted a "filero" — a knife.

Inside, restaurant employees Najera, Coronado, and Hernandez, all of whom subsequently were interviewed by the police, each watched the unfolding altercation and saw and heard Cuevas enter the restaurant and demand a knife. Although there is conflicting testimony regarding how Cuevas entered the kitchen itself, it is undisputed that all three employees watched Cuevas depart from the kitchen with an approximately 12-inch knife. Najera told the interviewing officer that he was frightened when Cuevas entered, and had opened the gate for Cuevas. In a subsequent deposition, however, Najera denied having opened the gate. Coronado stated that he told Cuevas he was not allowed to enter behind the counter, but Cuevas nevertheless barged through the unlatched swinging gate. Hernandez stated that from the kitchen area he had seen persons fighting and had observed Cuevas enter and demand a knife. Coronado reported that shortly after Cuevas left the kitchen with the knife, he saw Cuevas "bend over a person that was on the ground" and "saw him making stabbing motions."

Approximately 25 feet from where the employees were watching from inside the restaurant, Cuevas stabbed plaintiff at least twice. The employees continued to watch as Cuevas chased Rhodes and Bonilla, who ran out of the parking lot and across a street. Unable to overtake them, Cuevas returned to the car in which plaintiff and his companions had arrived and used the knife to puncture three of its tires. Meanwhile, Rhodes ran to a nearby fast food restaurant where he used a pay phone to call 911.

Cuevas and De La Vega drove off in their car and soon tracked down plaintiff, who had stopped, wounded, on a nearby public sidewalk. Plaintiff was then stabbed several more times. Three minutes and 58 seconds after Rhodes's 911 call, police arrived on the scene.

The entire incident, beginning with the fistfight in the parking lot immediately in front of the restaurant and culminating with the second stabbing attack upon plaintiff, consumed approximately seven to eight minutes. During this time, none of defendant's three employees telephoned the police or any other emergency personnel. Employee Coronado, asked by an investigating officer whether he had called the police, responded that the phone was disabled. Employee Najera eventually made the same statement by deposition. Defendant, the restaurant's proprietor, echoed that assertion in his own deposition, stating that on the day of the assault the phone did not work and that he had contacted Pacific Bell, which sent someone to fix the problem the next day. Defendant possessed no record of such a repair, however, and in response to plaintiff's subpoena, Pacific Bell reported that it had no record of any such problem or repair.

The police arrested Cuevas approximately six months after the assault. The record does not indicate the result of any subsequent criminal prosecution.

Plaintiff sued defendant as well as the shopping center landlord, alleging negligence under a premises liability theory, as well as battery. The trial court initially denied motions for summary judgment filed by defendant and the landlord, but upon further review granted those motions a month later. The court found that that...