Onciano v. Golden Palace Restaurant, Inc.

• Decision Date: 30 March 1990
• Docket Number: No. B041704,B041704
• Citation: 268 Cal.Rptr. 96,219 Cal.App.3d 385
• Court: California Court of Appeals Court of Appeals
• Parties: Evangeline ONCIANO, Plaintiff and Appellant, v. GOLDEN PALACE RESTAURANT, INC., Defendant and Respondent.

Page 96

268 Cal.Rptr. 96

219 Cal.App.3d 385

Evangeline ONCIANO, Plaintiff and Appellant, v. GOLDEN PALACE RESTAURANT, INC., Defendant and Respondent.

No. B041704.

Court of Appeal, Second District, Division 7, California.

March 30, 1990.

Review Denied June 27, 1990.

[219 Cal.App.3d 389] Arthur H. Lampel, Culver City, for plaintiff and appellant.

Mallory, Brown-Curtis & Mallory and Vera Brown-Curtis, Los Angeles, for defendant and respondent.

LILLIE, Presiding Justice.

Plaintiff Evangeline Onciano appeals from summary judgment in favor of defendant Golden Palace Restaurant, Inc. in a negligence action.

FACTS

On May 17, 1986, plaintiff and three companions dined at defendant restaurant in the Chinatown area of Los Angeles. They arrived at about 11:30 p.m. and parked their cars in the parking lot, owned by defendant, at the rear of the restaurant. At about 12:30 a.m. plaintiff and her companions left the restaurant. Before they reached their cars plaintiff saw three men jump over a fence into the parking lot. As plaintiff was about to enter her car the men came up to her, robbed her, and threatened to kidnap her. Plaintiff struggled with one of the men, who had a gun, and they fell to the ground. The man got up, kicked plaintiff, and escaped in her car with his fellow robbers.

Plaintiff sued defendant for damages for negligence. The complaint alleged that defendant knew or should have known that the area in which its parking lot was situated was frequented by gangs and individuals with a known propensity for violence. As the owner of the parking lot defendant owed a duty to plaintiff, a member of the public making use of the lot, to operate, maintain and supervise it in a safe manner. Defendant breached such duty by failing properly to light, fence and guard the parking lot and take other reasonable steps to protect members of the public, including plaintiff, who were lawfully upon the parking lot. As a proximate result of defendant's breach of duty plaintiff was assaulted and robbed in the parking lot by third persons and thereby incurred serious and permanent bodily injury and emotional distress as well as loss of personal property.

Defendant moved for summary judgment on the ground it is not liable for injuries caused by the unforeseeable criminal conduct of third persons. In support of the motion defendant presented excerpts from the deposition of its general manager, Edmund Lee, who testified: The overall crime rate in Chinatown is "minimal" and the crime rate in the immediate area of defendant's restaurant is "very low." Between January 1, 1980 and May 17, 1986, he was not aware of any criminal incidents occurring in defendant's parking lot or anywhere else on defendant's property. Mr. Lee was defendant's general manager throughout this period and his employees would have informed him of such incidents if any had occurred. Defendant's parking lot is approximately 4,000 square feet in area and is enclosed by a chain link fence about six feet high. Mr. Lee described the lights in the parking lot at the time of plaintiff's assault; these included four 500 watt spotlights, 16 floodlights in the ceiling of the carport, and a "Golden Palace" electric sign. According to other evidence in support of defendant's motion, at the time of plaintiff's assault and robbery defendant employed a parking attendant. His hours were 10:00 a.m. to 2:30 p.m. and 5:30 to 10:00 p.m.; he worked until 11:00 p.m. if there was a party.

In her declaration in opposition to the motion for summary judgment plaintiff stated that when she was assaulted and robbed defendant's parking lot was dark; the only lights which were lit were in the carport area. No parking attendant was on duty. In her deposition plaintiff testified that the fence around the parking lot was approximately four feet high at the point where her car was parked.

The trial court granted the motion. Summary judgment was entered in favor of defendant and against plaintiff. This appeal followed.

DISCUSSION

I STANDARD OF REVIEW

A motion for summary judgment "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." (Code Civ.Proc., § 437c, subd. (c).) The purpose of summary judgment is to penetrate evasive language and adept pleading and ascertain, through supporting and opposing papers, the presence or absence of triable issues of fact. (Chern v. Bank of America (1976) 15 Cal.3d 866, 873, 127 Cal.Rptr. 110, 544 P.2d 1310; Charpentier v. Von Geldern (1987) 191 Cal.App.3d 101, 106, 236 Cal.Rptr. 233.) Accordingly, the function of the trial court in ruling on a motion for summary judgment is merely to determine whether such issues of fact exist and not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107, 252 Cal.Rptr. 122, 762 P.2d 46.)

The reviewing court conducts a de novo examination to determine whether there are any genuine issues of material fact or whether the moving party is entitled to summary judgment as a matter of law. (Decker v. City of Imperial Beach (1989) 209 Cal.App.3d 349, 353, 257 Cal.Rptr. 356.) To succeed, a defendant moving for summary judgment "must conclusively negate a necessary element of the plaintiff's case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial." (Donald v. Sacramento Valley Bank (1989) 209 Cal.App.3d 1183, 1190, 260 Cal.Rptr. 49.)

II NEGLIGENCE

A Duty Of Care

"The sine qua non of any negligence action is the existence of a duty of care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member." (Gregorian v. National Convenience Stores, Inc. (1985) 174 Cal.App.3d 944, 948, 220 Cal.Rptr. 302.) A landowner has a duty " 'to take affirmative action to control the wrongful acts of third persons which threaten invitees where the [owner] has reasonable cause to anticipate such acts and the probability of injury resulting therefrom.' [Citation.]" (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 123, 211 Cal.Rptr. 356, 695 P.2d 653.) Whether such a duty exists is a question of law to be determined on a case-by-case basis. (Id., at p. 124, 211 Cal.Rptr. 356, 695 P.2d 653.) In negligence law duty is simply the court's " 'expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.' [Citation.]" (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.)

The chief element in determining whether defendant owes a duty to plaintiff is the foreseeability of the risk. (Hedlund v. Superior Court (1983) 34 Cal.3d 695, 705, 194 Cal.Rptr. 805, 669 P.2d 41; Sun 'n Sand, Inc. v. United California Bank (1978) 21 Cal.3d 671, 695, 148 Cal.Rptr. 329, 582 P.2d 920.) While in fact-specific settings foreseeability may be a factual issue for the jury, in a court's determination of the existence of duty as a question of law foreseeability is also a question of law. (Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 82, 256 Cal.Rptr. 877; Clarke v. Hoek (1985) 174 Cal.App.3d 208, 214, 219 Cal.Rptr. 845.) Foreseeability " 'is not to be measured by what is more probable than not, but includes whatever is likely enough in the setting of modern life that a reasonably thoughtful [person] In support of its motion for summary judgment defendant produced evidence that no criminal activity took place in its parking lot, or elsewhere on its premises, during a period of approximately six and a half years preceding plaintiff's assault and robbery. While the occurrence of prior similar incidents is an important factor to be considered in determining foreseeability, the lack of such incidents does not by itself negate the element of foreseeability as a matter of law. (Isaacs v. Huntington Memorial Hospital, supra, 38 Cal.3d at pp. 125-126, 211 Cal.Rptr. 356, 695 P.2d 653.) Regarding the location of defendant's property, Mr. Lee, defendant's general manager, expressed the opinion that the crime rate in Chinatown is "minimal" and the crime rate in the immediate vicinity of defendant's restaurant is "very low." Mr. Lee did not claim to be an expert on crime statistics and defendant presented no evidence to back up his opinion. Because papers filed in support of a motion for summary judgment must be strictly construed (Lucchesi v. Giannini & Uniack (1984) 158 Cal.App.3d 777, 782, 205 Cal.Rptr. 62), we disregard Mr. Lee's unsubstantiated opinion regarding crime rates. Defendant's property in question is a parking lot. Such a facility is largely deserted and automobiles there are left unattended for long periods of time thereby furnishing " 'an especial temptation and opportunity for criminal misconduct' " (Gomez v. Ticor (1983) 145 Cal.App.3d 622, 628, 193 Cal.Rptr. 600), particularly at night. "[C]ommon experience and reason support the conclusion more robberies occur at night; fewer people are around to interfere with or witness the crime." (Cohen v. Southland Corp. (1984) 157 Cal.App.3d 130, 141, 203 Cal.Rptr. 572.) Accordingly, for purposes of assessing a duty on defendant's part, we conclude it was reasonably foreseeable that defendant's patrons using its parking lot at night could become the victims of criminal conduct and suffer consequent injuries.

                would take account of it in guiding practical conduct.'  [Citation.]"  (Bigbee v. Pacific Tel. & Tel. Co.  (1983) 34 Cal.3d 49, 57, 192 Cal.Rptr. 857, 665 P.2d 947.)   Thus, in determining the existence of a landowner's duty to protect invitees from the wrongful conduct of third persons, foreseeability is measured by all of the circumstances including the nature, condition and location of the defendant's premises and defendant's prior experience, bearing in mind that what is required to be foreseeable is the general nature of the

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