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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 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 This opinion has not been certified for publication or ordered 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) 

 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 that the trial court did not apply an 

elevated threshold of foreseeability but rather properly determined whether 

Duenas’s violent criminal act was “reasonably” foreseeable under the 

circumstances. Plaintiffs’ conclusion 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-GERST, J., CHAVEZ, J. 
Filed 3/6/13 Mendoza v. Baca 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 Homampour 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 Mendoza, Christopher Mendoza, and Steven 

Mendoza (collectively, plaintiffs) appeal from the summary judgment entered in favor of 

defendant and respondent Consuelo Baca (Baca) 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 restaurant 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 Place 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, Duenas and other customers began arguing 

about who was responsible for paying musicians who had performed on the premises. As 

the men argued, Baca saw Duenas strike another customer. Baca told Duenas to stop or 

she would call the police. Duenas then struck Baca, and a customer named Alejandro 

Garcia (Garcia) intervened 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 dispatcher that the altercation had 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, Duenas broke through the front door, shooting a gun. A bullet 
4 

struck Baca in the back. Another bullet struck Mendoza, killing 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 action 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 owned 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 nothing 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 causation. Plaintiffs 

disputed the fact that Baca did not know Duenas intended to return to exact retribution. 

They offered in opposition the 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 the 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 offered in opposition the deposition testimony of responding Los 

Angeles County Sheriff’s Deputy Phillip Martinez, who testified that he interviewed the 

owner of the SUV Baca had observed outside My Place shortly before the incident. The 

owner of the vehicle told Deputy Martinez that 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 and an inner wood door -- and that although 

Baca locked both the gate and the wood door after Duenas initially 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 number. She then locked 

the wood door only, and Duenas later pushed his way through that door to enter the 

premises. 

 Plaintiffs offered evidence to establish that Baca was afraid when a group of men, 

including Duenas, first entered the bar both because of the size of the group and because 

she knew that one of the men owned a ranch at which guns had been fired. Plaintiffs also 

offered evidence that Baca had no security to frisk these 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 the owner of the El Castillo Night Club from 

1995 to 2005, and on one occasion in 1999, a shooting occurred there. 

 Both parties filed objections to each other’s evidence. The trial court overruled all 

the evidentiary objections. The court granted plaintiffs’ request 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 published 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 doing so, the trial court took judicial notice of 

the existence of the preliminary 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 reached, 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 plaintiffs 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 that plaintiffs failed to establish any triable 

issue of material fact as to the foreseeability 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 moving party establishes the right to entry 

of judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) A defendant 

moving for summary judgment bears 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 defense 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 more material facts exists 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 obtain a summary judgment, “all that the defendant 

need do is to show that the plaintiff cannot establish at least one element of the cause of 

action . . . . [T]he defendant need not himself 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 foreseeability 
7 

 The elements of plaintiffs’ causes of action for negligence are duty, breach of duty, 

causation, and damages. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 529.) The 

same foundational elements must be established 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 assumed 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 she 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 maintenance “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 absence of such precautionary measures. [Citations.]” (Ann M., 

supra, 6 Cal.4th at p. 674, italics added.) 

 Foreseeability is a crucial factor in determining 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 such 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 any 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 on 
8 

the foreseeability of the risk but also a weighing of policy considerations for and against 

the imposition of liability. (Ibid.) “‘Because the consequences of a negligent act must be 

limited to avoid an intolerable burden on society [citation], the determination 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 and thus determine liability but none on which 

the foresight alone provides a socially and judicially acceptable limit on recovery of 

damages for [an] injury.” [Citation] In short, foreseeability is not synonymous with 

duty, nor is it a substitute.’ [Citation.]” (Ibid.) 

III. Baca met her initial burden of establishing no duty to prevent the criminal act 

 Baca met her initial burden of establishing that she owed no duty to prevent 

Mendoza’s death in this case because it was 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 ownership. 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 retribution 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 evidence 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 returning to the bar to shoot.1 There is no evidence, however 

that Baca heard Duenas make such a statement. Plaintiffs also presented evidence that 

Duenas had the number 38 tattooed on his inner forearm, allegedly designating him as a 

member of the 38th Street gang but offered no evidence that Baca saw the tattoo or 

 

1 The trial court overruled Baca’s hearsay objection 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 Baca became nervous when a group 

of men, including Duenas, entered the bar, because 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 known 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 different business establishment owned by Baca 

more than seven years before the incident at issue here does not establish the 

foreseeability of Duenas’s actions in this case. Moreover, in that prior action, summary 

judgment was affirmed in Baca’s favor because the court found that Baca owed no duty 

to the victim because the 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 patronized 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 proprietors 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 measures.’ [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 existence 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 burden of preventing future harm 

caused by third party criminal conduct is great or onerous (as when a 

plaintiff . . . asserts the defendant had a legal duty to provide guards or 

undertake equally onerous measures, or as when a plaintiff . . . asserts the 

defendant has a legal duty to provide bright lighting, activate and monitor 

security cameras, provide periodic ‘walk-throughs’ by existing personnel, 
10 

or provide stronger fencing), heightened foreseeability -- shown by prior 

similar criminal incidents or other indications of a reasonably foreseeable 

risk of violent criminal assaults in that location -- will be required. By 

contrast, in cases in which harm can be prevented by simple means or by 

imposing merely minimal burdens, only ‘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 analysis in this case was faulty because it was 

premised solely on Baca’s alleged failure to hire security guards and the “high degree of 

foreseeability” required to impose such a duty, and that the trial court ignored the 

“sliding-scale balancing formulation” set forth in Delgado. They claim a substantially 

lower threshold for determining foreseeability should have been applied because they 

alleged that Baca could have taken other reasonable, relatively simple, and minimally 

burdensome measures to prevent Mendoza’s death, 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 properly determined whether Duenas’s violent 

criminal act was “reasonably” foreseeable under the circumstances. The trial court also 

addressed plaintiffs’ allegations regarding additional measures Baca could have taken, 

noting that the same result could have occurred even if Baca had taken such measures. 

The court observed that plaintiffs’ own evidence showed the existence of a window at the 

front of the bar through which Duenas could have fired his gun. Plaintiffs’ conclusion 

that Baca could have prevented 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 Mendoza and the other patrons by calling 911 in 

response to Duenas’s physical altercation with Garcia but then telling the dispatcher that 
11 

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 back in. As the trial court 

noted, there is no evidence to suggest that Baca’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 when the physical altercation between Duenas and Garcia 

first started, locking the doors when she learned that Duenas had returned, and writing 

down the license plate number of the vehicle Baca observed parked near her bar. 

 There is no evidence to support plaintiffs’ assertion that Baca’s actions created a 

dangerous condition at the premises. Providing musical entertainment, albeit not allowed 

under the terms of Baca’s business license, and 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 connected 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 evidentiary 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 preliminary hearing came within the state of mind of 

an exception to the hearsay 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 the 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 Castillo Night Club, was offered to show Baca’s motivation to 

make money from customers by “scamming” them 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 years 
12 

ago are relevant to the foreseeability of Duenas’s actions in this case. The trial court did 

not abuse its discretion by limiting judicial notice of those documents. 

 Summary judgment was properly 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