Filed 4/2/13 Mendoza v. Baca CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and pa rties from citing or relying on opinions not certified for pu blication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO
PETRA MENDOZA et al.,
Plaintiffs and Appellants,

v.
CONSUELO BACA,
Defendant and Respondent. B237292
(Los Angeles County Super. Ct. No. KC056160)

ORDER MODIFYING OPINION AND DENYING REHEARING [NO CHANGE IN JUDGMENT]

THE COURT: It is ordered that the opinion filed herein on March 6, 2013, be modified as follows: 1. On page 9, the first full paragraph, beginning “The statement of decision makes
clear” is modified to reads as follows:
The statement of decision makes clear th at the trial court did not apply an elevated threshold of foreseeability bu t rather properly determined whether Duenas’s violent criminal act was “reasonably” foreseeable under the circumstances. Plaintiffs’ conclusi on that Baca could have prevented Duenas from shooting is speculative, at best.

There is no change in the judgment.
Appellant’s petition for rehearing is denied.

*BOREN, P.J., ASHMANN-GE RST, J., CHAVEZ, J.Filed 3/6/13 Mendoza v. B aca CA2/2 (unmodified version) NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO

PETRA MENDOZA et al.,

Plaintiffs and Appellants,

v.

CONSUELO BACA,

Defendant and Respondent. B237292

(Los Angeles County Super. Ct. No. KC056160)

APPEAL from a judgment of the Superior Court of Los Angeles County. Peter J.
Meeka. Affirmed.

The Homampour Law Firm, Arash Homa mpour and Wendi O. Wagner; The Law
Offices of Thomas C. Zaret and Thomas C. Zaret for Plaintiffs and Appellants.

Lewis Brisbois Bisgaard & Smith, William John Rea, Jr. and Roy G. Weatherup for Defendant and Respondent.3 Plaintiffs and appellants Petra Mendo za, Christopher Mendoza, and Steven Mendoza (collectively, plaintiffs) appeal fro m the summary judgment entered in favor of defendant and respondent Consuelo Baca (Bac a) in this wrongful death action based on negligence and premises liability . We affirm the judgment.
BACKGROUND The parties
Plaintiffs are the wife and children of decedent Bernardo Mendoza (Mendoza),
who was shot and killed at a neighborhood bar and restaura nt called “My Place.” Baca was the owner of My Place at the time Mendoza was killed. Factual background Mendoza and Baca were present at My Pl ace on November 3, 2007, as were other patrons of the bar. Julio Duenas (Duenas) arrived at My Place at approximately 7:00 p.m. that night. At some point during the evening, Du enas and other customers began arguing about who was responsible for paying musician s who had performed on the premises. As the men argued, Baca saw Duenas strike anothe r customer. Baca told Duenas to stop or she would call the police. Du enas then struck Baca, and a customer named Alejandro Garcia (Garcia) interv ened to defend Baca.
Duenas and Garcia left the premises to take their dispute outside. Baca telephoned the police, but was unable to speak to a dispatcher until after Duenas had left the premises. Baca told the dispat cher that the altercation ha d ended and that Duenas had
left. Shortly after Duenas left My Place, he returned. When Baca learned that Duenas had returned, she locked both the front and back doors to My Place to prevent him from entering. Minutes later, Duen as broke through the front door, shooting a gun. A bullet4 struck Baca in the back. A nother bullet struck Mendoza, k illing him. Baca telephoned the police as she lay bleeding behind the bar. Police subsequently arrested Duenas, who was convicted of murdering Mendoza. Procedural background Plaintiffs filed this wrongful death ac tion against Baca, asserting causes of action for negligence and premises liability. Baca moved for summary judgment on the grounds that she owed no legal duty to Mendoza to prevent his death because his murder was unforeseeable, and because her actions and/or omissions were not the legal cause of Mendoza’s death. In support of her motion, Baca submitted her own declaration in which she averred that during the 17 years she ow ned My Place, there had never been a shooting on the premises. Baca further stated in her declaration that she had never seen
Duenas before the incident and knew nothi ng about his background, Duenas did not tell
her that he intended to return to My Place or to exact retribution, and she had no reason to
believe that Duenas would return to shoot her and her customers. Plaintiffs opposed the summary judgment motion, arguing that Baca failed to meet her burden of establishing no duty or lack of causation and that triable issues of material fact existed regarding the issues of duty, breach of duty, and caus ation. Plaintiffs disputed the fact that Baca di d not know Duenas intended to return to exact retribution. They offered in opposition th e declaration of a customer named Jesus Mendoza, who stated that Karina Lopez, a waitress working at My Place on the night of the incident, blurted out a few days after th e incident that she had heard Duenas vow to return to My Place to shoot. Plaintiffs also disputed the fact that Baca knew nothing about Duenas’s background. They offere d in opposition the deposition testimony of responding Los Angeles County Sheriff’s Deputy Phillip Martinez, who testifie d that he interviewed the
owner of the SUV Baca had obse rved outside My Place shortly before the incident. The owner of the vehicle told Deputy Martinez th at Duenas was a member of the 38th Street gang and that Duenas had the number 38 tattooed on his inner forearm.5 Plaintiffs disputed that the doors to My Place remained locked after Duenas left the premises initially. They offered evidence that the front entrance to My Place was secured by two doors -- an outer iron gate an d an inner wood door -- and that although Baca locked both the gate and the wood door after Duenas in itially left the premises, she subsequently unlocked both the gate and the door in order to let a musician out. When Baca did so, she saw an SUV and wrote down its license plate numbe r. She then locked the wood door only, and Duen as later pushed his way through that door to enter the premises.
Plaintiffs offered evidence to establish th at Baca was afraid when a group of men, including Duenas, first entered the bar both b ecause of the size of the group and because
she knew that one of the men owned a ranch at wh ich guns had been fire d. Plaintiffs also
offered evidence that B aca had no security to frisk thes e men and did not know if they had guns or access to guns, and that Baca had no training in self-defense or in security measures for a bar, and never had anyone to advise her on security measures. Finally, plaintiffs offered evidence that Baca was th e owner of the El Ca stillo Night Club from 1995 to 2005, and on one occasion in 1999, a sh ooting occurred there. Both parties filed objections to each othe r’s evidence. The trial court overruled all the evidentiary objections. Th e court granted plaintiffs’ reque st for judicial notice of the preliminary hearing transcript in People v. Duenas , the criminal case in which Duenas was convicted for Mendoza’s murder; and a copy of the respondent’s brief, the transcript of Baca’s deposition, and the publis hed appellate court decision in Lopez v. Baca (2002) 98 Cal.App.4th 1008 ( Lopez ), a civil action against Baca by the victim of the 1999 shooting at the El Castillo Night Club. In doi ng so, the trial court took judicial notice of the existence of the prelimin ary hearing transcript in People v. Duenas and the existence of Baca’s deposition transcript in Lopez , but not the contents of those documents. With respect to the appellate opinion in Lopez , the trial court took judicial notice of the existence of the opinion and the result reache d, but did not take judicial notice of the
statement of facts for the truth of those matters.6 In ruling on the motion for summary judgment, the trial court concluded that Baca had met her burden of proving that plainti ffs could not establish the element of duty because it was not reasonably foreseeable that Duenas would return to My Place to shoot its patrons. The trial court further concluded th at plaintiffs failed to establish any triable
issue of material fact as to the fores eeability of Duenas’s actions and whether Baca owned a duty to protect Mendoza from those actions. Summary judgment was entered in Baca’s favor, and this appeal followed.
DISCUSSION
I. Standard of review Summary judgment is granted when a movi ng party establishes the right to entry of judgment as a matter of law. (Code Ci v. Proc., § 437c, subd . (c).) A defendant moving for summary judgment be ars the initial burden of proving that there is no merit to a cause of action by showing that one or more elements of the cause of action cannot be established or that there is a complete defens e to that cause of action. (Code Civ. Proc., § 437c, subd. (p)(2); Cucuzza v. City of Santa Clara (2002) 104 Cal.App.4th 1031, 1037.)
Once the defendant has made such a showing, the burden shifts to the plaintiff to show
that a triable issue of one or mo re material facts exis ts as to that cause of action or as to a defense to the cause of action. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) If the plaintiff does not make such a showing, summary judgment in favor of the defendant is appropriate. In order to obtai n a summary judgment, “a ll that the defendant need do is to show that the pl aintiff cannot establish at least one element of the cause of action . . . . [T]he defendant need not hims elf conclusively negate any such element . . . .” ( Id . at p. 853.)
We review the trial court’s grant of summary judgment de novo and decide independently whether the facts not subject to triable dispute warrant judgment for the moving party as a matter of law. ( Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348; Code Civ. Proc., § 437c, subd. (c).) We review the trial court’s evidentiary rulings in connection with a summary judgment motion under the abuse of discretion standard. ( Carnes v. Superior Court (2005) 126 Cal.App.4th 688, 694.) II. Duty and foreseeability7 The elements of plaintiffs’ causes of action for negligence are d uty, breach of duty, causation, and damages. ( Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.) The
same foundational elements must be estab lished for a cause of action for premises liability based on negligence. ( Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) The key element in this case is duty, the existence of which is a question of law. ( Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 ( Ann M. ) disapproved on other grounds in Reid v. Google, Inc . (2010) 50 Cal.4th 512, 527, fn. 5.) “Duty ‘may be imposed by law, be assume d by the defendant, or exist by virtue of a special relationship.’ [Citation.]” ( Melton v. Boustred, supra , 183 Cal.App.4th at pp. 529-530.) “[A]s a general matter, there is no duty to act to protect others from the conduct of third parties. [Citations.]” ( Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235 ( Delgado ).) However, “[a] defendant may owe an affirmative duty to protect another from the conduct of third parties if he or sh e has a ‘special relationship’ with the other person,” such as the relationship between a bar owner and its patrons or invitees. ( Ibid .) In such a case, the general duty of maintena nce “include[s] the duty to take reasonable steps to secure common areas against foreseeable criminal acts of third parties that are likely to occur in the absen ce of such precautionary measures. [Citations.]” ( Ann M.,

supra , 6 Cal.4th at p. 674, italics added.) Foreseeability is a crucial factor in dete rmining the existence of such a duty. ( Ann M., supra , 6 Cal.4th at p. 676.) “[A] duty to take affirmative action to control the wrongful acts of a third party will be imposed only where su ch conduct can be reasonably anticipated. [Citations.]” ( Ibid. ) Foreseeability is determined in light of the totality of the circumstances. ( Sakiyama v. AMF Bowling Centers, Inc. (2003) 110 Cal.App.4th 398, 406 ( Sakiyama ).) With the benefit of hindsight, almost a ny result is foreseeable. For this reason, foreseeability alone is not sufficient to create an independent duty of care. ( Sakiyama,

supra , 110 Cal.App.4th at p. 407.) The existence of a duty therefore depends not only on8 the foreseeability of the risk but also a wei ghing of policy considera tions for and against the imposition of liability. ( Ibid. ) “‘Because the consequences of a negligent act must be
limited to avoid an intolerable burden on so ciety [citation], the de termination of duty “recognizes that policy considerations may dictate a cause of action should not be
sanctioned no matter how foreseeable the risk.” [Citation.] “[T]here are clear judicial days on which a court can foresee forever an d thus determine liabili ty but none on which the foresight alone provides a socially and judicially acceptable limit on recovery of damages for [an] injury.” [C itation] In short, foreseea bility is not synonymous with duty, nor is it a substitute.’ [Citation.]” ( Ibid. )
III. Baca met her initial burden of establis hing no duty to prev ent the criminal act
Baca met her initial burden of establishi ng that she owed no duty to prevent
Mendoza’s death in this case because it wa s not reasonably foreseeable that Duenas would return to My Place to shoot its patrons. Baca presented evidence that there had never been a shooting at My Place during her 17 years of owne rship. She had never seen Duenas before the night of the shooting and knew nothing about his background. Duenas
did not tell Baca that he intended to return or to exact retribu tion after he left the premises initially. IV. No triable issue as to duty Plaintiffs failed to raise any triable issue as to foreseeability. In an effort to establish foreseeability, plaintiffs presented ev idence that a waitress working at My Place on the night of the incident told a customer several days after the incident that she had heard Duenas say he was retu rning to the bar to shoot. 1 There is no evidence, however
that Baca heard Duenas make su ch a statement. Plaintiffs also presented evidence that
Duenas had the number 38 tattooed on his inne r forearm, allegedly designating him as a member of the 38th Street gang but offere d no evidence that Baca saw the tattoo or

1 The trial court overruled Baca’s hearsay obj ection to this evidence as well as other evidentiary objections raised by Baca because she failed to quote the evidence objected to, in violation of California Rules of Court, rule 3.1354. Baca did not appeal the trial court’s evidentiary rulings.9 recognized its significance. Plaintiffs’ evidence that Ba ca became nervous when a group of men, including Duenas, entered the bar, b ecause of the size of the group and because one of the men owned a ranch at which people allegedly shot guns, and that Baca knew that customers who consumed alcohol might act unreasonably or become violent, does not support the conclusion that Baca knew or should have know n Duenas would return to My Place to shoot its patrons. That Baca was a defendant in Lopez , a prior civil action by a nightclub patron who was shot at a diffe rent business establishment owned by Baca more than seven years befo re the incident at issue here does not establish the foreseeability of Duenas ’s actions in this case. Moreov er, in that prior action, summary judgment was affirmed in Baca’s favor becaus e the court found that Baca owed no duty
to the victim because th e shooting was unforeseeable as a matter of law. ( Lopez, supra , 98 Cal.App.4th at p. 1015.)
Plaintiffs cite Delgado as support for their claim that Baca’s “special relationship” with Mendoza as the owner of a bar patronize d by him created a duty to protect Mendoza
from Duenas’s criminal conduct. In Delgado , our Supreme Court reaffirmed the “well established” principle that commercial proprieto rs have a duty 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 meas ures.’ [Citations.]” ( Delgado, supra , 36 Cal.4th at p. 237, italics added.) The court in Delgado did not abrogate foreseeability as a crucial factor in determining the existen ce and scope of the duty owed by a commercial proprietor to its patrons but set forth a “sliding-scale balancing formulation” for determining the scope of that duty:
“In circumstances in which the bu rden of preventin g future harm caused by third party criminal conduc t is great or onerous (as when a plaintiff . . . asserts the defendant ha d a legal duty to provide guards or undertake equally onerous measures, or as when a plainti ff . . . asserts the defendant has a legal duty to provide bright lighting, activate and monitor security cameras, provide periodic ‘w alk-throughs’ by existing personnel,10 or provide stronger fencing), heighten ed foreseeability -- shown by prior
similar criminal incidents or other i ndications of a reasonably foreseeable
risk of violent criminal assaults in that location -- will be required. By contrast, in cases in which harm ca n be prevented by simple means or by imposing merely minimal burdens, onl y ‘regular’ reasonable foreseeability as opposed to heightened foreseeability is required.”

( Delgado, supra , 36 Cal.4th at pp. 243-244, fn. 24.) Plaintiffs claim the trial court’s analys is in this case was faulty because it was premised solely on Baca’s alle ged failure to hire security guards and the “high degree of foreseeability” required to impose such a du ty, and that the trial court ignored the “sliding-scale balancing formulation” set forth in Delgado . They claim a substantially
lower threshold for determini ng foreseeability should have been applied because they alleged that Baca could have taken other re asonable, relatively simple, and minimally burdensome measures to prevent Mendoza’s de ath, such as “inform[ing] police of the threat, warn[ing] the patrons of MY PLACE of the threat” or “clos[ing] MY PLACE as a
result of the threat.”
The statement of decision makes clear that the trial court did not apply an elevated threshold of foreseeability but rather prope rly determined whether Duenas’s violent criminal act was “reasonably” foreseeable unde r the circumstances. The trial court also addressed plaintiffs’ allegations regarding additional measures Baca could have taken, noting that the same result could have occurre d even if Baca had taken such measures. The court observed that plaintiffs’ own eviden ce showed the existence of a window at the front of the bar through which Duenas could ha ve fired his gun. Plaintiffs’ conclusion that Baca could have preven ted Duenas from shooting is speculative, at best. The same reasoning applies to plaintiffs ’ argument that Baca may be held liable for negligently undertaking to protect Mend oza and the other patrons by calling 911 in response to Duenas’s physical altercation with Garcia but then telling the dispatcher that11 no police response was necessary because Duenas had already left the premises and by initially locking the doors to the premises after Duenas’s departure but subsequently unlocking the front door through which Duenas forced his way b ack in. As the trial court noted, there is no evidence to suggest that Ba ca’s actions or omissions encouraged the shooting. Rather, the evidence showed that Baca attempted to prevent further violence in her bar by calling the police wh en the physical altercation between Duenas and Garcia first started, locking the doors when she l earned that Duenas had returned, and writing down the license plate number of the vehi cle Baca observed parked near her bar. There is no evidence to support plainti ffs’ assertion that Baca’s actions created a dangerous condition at the premises. Providi ng musical entertainment, albeit not allowed under the terms of Baca’s business license, a nd requiring customers to pay for requested songs did not, as plaintiffs suggest, create a dangerous condition that caused the shooting. Mendoza’s injuries were not closely connecte d to Baca’s actions but instead were caused by Duenas’s act of firing multiple rounds from his gun into the bar. V. Alleged evidentiary errors Plaintiffs challenge the trial court’s ev identiary rulings limiting judicial notice of the preliminary hearing transcript in People v. Duenas and the transcript of Baca’s deposition in Lopez to the existence of those documents and excluding their contents. They claim Baca’s testimony at the preliminar y hearing came within the state of mind of an exception to the hear say rule because her statement that she did not want the police to respond to My Place during her initial 911 call was offered to show the effect of that statement on the police rather than to prove th e truth of the statement itself. Plaintiffs further claim Baca’s deposition testimony in Lopez , the prior civil action involving the 1999 shooting at the El Cas tillo Night Club, was offered to show Baca’s motivation to make money from customers by “scamming” th em without their knowledge. Plaintiffs
fail to establish how the effect of Baca’s statements on the 911 dispatcher or the motivation underlying Baca ’s business practices at the El Castillo Night Club seven years12 ago are relevant to the foreseeab ility of Duenas’s actions in th is case. The trial court did not abuse its discretion by limiting j udicial notice of those documents. Summary judgment was prope rly granted in this case.
DISPOSITION The judgment is affirmed. Baca is awarded her costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

.

__________ ___________________, J.
CHAVEZ
We concur:

_____________ _______________, P. J.
BOREN

___________________ _________, J.
ASHMANN-GERST