Case Number: BC625890 Hearing Date: January 29, 2019 Dept: 5
Superior Court of California
County of Los Angeles
Department 5
Iqbal S. Sagoo,
Plaintiff,
v.
naeemah arvonna pena, et al.,
Defendants.
Case No.: BC635890
Hearing Date: January 29, 2019
[TENTATIVE] order RE:
Motion for Summary Judgment
INTRODUCTION
On October 4, 2014, Naeemah Pena (“Naeemah”) stabbed Iqbal S. Sagoo (“Plaintiff”) at the home of Angela Pena (“Defendant”). Plaintiff filed the complaint on October 3, 2015, alleging causes of action against Defendant for general negligence, assault and battery, and premises liability. Defendant moves for summary judgment or, in the alternative, summary adjudication of each cause of action. The motion is granted.
UNDISPUTED FACTS
Defendant owned the house at issue, along with her brother, Richard Pena. (UMF No. 1.)[1] Richard Pena (“Richard”) was married to Naeemah, who also resided at the house. (UMF No. 2.) Plaintiff had a relationship with Defendant, and they have a son in common. (UMF. Nos. 4, 5.) Prior to the incident at issue, Naeemah had never attacked or threatened to attack Plaintiff or any non-family member at the house. (UMF No. 10.) Prior to the incident, Naeemah had only broken things in the house, been verbally abusive to Defendant, and blocked Defendant from leaving the house. (Declaration of Cynthia K. Ung, Exh. B, at pp. 35, 47.) Specifically:
[Defendant] would overtly display dominance over my mom, [Defendant], by blocking her from leaving the house sometimes. . . . Just physically putting her body in front of [Defendant’s] body. She would be verbally abusive. . . . She would use her chest to, like, block as well (indicating).
(Id., Exh. B, at pp. 41:24-43:7.) Defendant’s son testified that he witnessed Naeemah touch Defendant on the shoulder or arm to prevent Defendant from leaving the house. (Id., Exh. B, at p. 43:1-7.)[2]
Plaintiff was aware of the conflict between Defendant/Richard and Naeemah. Defendant sought restraining orders “two or three times” against Naeemah, and each time, Plaintiff accompanied Defendant to Court. (Id., Exh. B., at pp.47:19-48:12.) Plaintiff would “come to the house often,” specifically a “couple times per week” to “check up” on his son and Defendant. (Id., Exh. B., at p.48:18-23.)
During the evening of October 4, 2014, Naeemah assaulted and injured Defendant at the house. (UMF No. 11.) Defendant fled the house and went to the hospital, where she called her son and told him what had happened. (UMF Nos. 11, 12.) Defendant and Plaintiff’s son then called Plaintiff to tell him what had happened. (UMF No. 14.) Plaintiff went to the house and saw Richard coming outside covered in blood. (UMF No. 15.) Nevertheless, Plaintiff entered the house, and Naeemah stabbed him in the upper torso and right arm. (UMF No. 17.) During the assault, Defendant was not present, as she had been transported to the hospital with her own stab wounds. (UMF No. 18.)
Legal Standard
“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law . . . . There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) In ruling on the motion, “the court may not weigh the plaintiff’s evidence or inferences against the defendant[’s] as though it were sitting as the trier of fact.” (Id. at 856.) However, the Court “must . . . determine what any evidence or inference could show or imply to a reasonable trier of fact.” (Ibid., emphasis original.)
Discussion
Defendant argues that Plaintiff’s causes of action for negligence and premises liability fail as a matter of law, because Defendant had no duty to protect Plaintiff from an attack by Naeemah. A property owner has a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) Whether a property owner has a duty to prevent a particular harm and the scope of any such duty are questions of law for the Court to resolve. (Id. at 36.)
In Rowland v. Christian (1968) 69 Cal.2d 108, the Court set forth the factual bases for finding a duty, and noted that analysis requires a “balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.”
(Id. at 37.) “[I]n the case of criminal conduct by a third party, an extraordinarily high degree of foreseeability is required to impose a duty on the landowner, in part because ‘it is difficult if not impossible in today’s society to predict when a criminal might strike.’” (Garcia v. Paramount Citrus Assn., Inc. (2008) 164 Cal.App.4th 1448, 1457, emphasis original.)
Defendant has met her prima facie burden of establishing that Naeemah’s attack was unforeseeable. The evidence establishes that there were issues between Naeemah and her co-habitants and that Naeemah has a volatile personality. However, evidence that Naeemah had broken things in the house, been verbally abusive to her co-habitants, and blocked Defendant from leaving the house does not translate to a foreseeable risk that she would commit a violent assault against a guest in the house, especially considering the “extraordinarily high degree of foreseeability” required to hold a defendant liable for the criminal conduct of another.
Plaintiff argues in his opposition that Defendant hired an investigator to conduct a background check of Naeemah, which revealed that she has at least 19 aliases as well as a criminal and civil litigation history going back more than 20 years. (PMF No. 2.) Specifically, Plaintiff argues that Naeemah’s “offenses included, but where not limited to Felony – Dissuade Witness with Force/Threat (threatening to kill the witness.)” (Plaintiff’s Opposition at p. 2.) Plaintiff misinterprets the record. In fact, approximately 18 years before the incident at issue, on June 26, 1996, Plaintiff was charged with a felony violation of California Penal Code section 136.1(c)(1), which is dissuading a witness with force or threat. (See Plaintiff’s Opposition, Exh. #1.) This charge does not establish that Plaintiff threatened to “kill” any witness or that she did anything more than verbally threaten a witness. More important, Plaintiff was not convicted of this felony or any other crime of violence. Instead, Plaintiff pleaded no contest to a misdemeanor violation of section 136.1(a)(1), a charge which does not involve threatened or actual violence. The criminal history proffered by Plaintiff shows no charges or convictions for crimes of violence. None of the civil litigation history involves violence. Although there are civil harassment restraining order proceedings between Defendant and Naeemah, as discussed, there is no evidence that any of those incidents involved the type of physical violence that would have put Defendant on notice that Naeemah would stab several people, including Plaintiff.[3]
Nor do the undisputed facts establish that Plaintiff violated any legal duty she owed. On the night of the incident, Defendant was in the hospital, having been the victim of a serious assault. It is undisputed that Defendant did not call Plaintiff to ask him to respond to the scene of the incident. There is no evidence that Defendant asked her son to have Plaintiff respond to the scene of the incident. Defendant merely called her son to report her injuries, and Plaintiff learned about the incident and took matters into his own hands. These facts do not create a triable issue that Defendant violated any legal duty to Plaintiff.
Even if Plaintiff’s proffered evidence created a triable issue whether Defendant owed a duty to Plaintiff, this case still would be barred by the doctrine of secondary assumption of risk. Secondary assumption of risk is at issue where the defendant owes the plaintiff a duty, but the plaintiff knowingly encounters a risk created by the breach of that duty. (Saffro v. Elite Racing, Inc. (2002) 98 Cal.App.4th 173, 178.) This is a comparative fault scheme, where the trier of fact considers the relative responsibility of the parties in apportioning the loss. (Ibid.) Although cases involving secondary assumption of risk normally are not conducive to summary judgment, because the trier of fact must consider the relative responsibility of the parties, the facts in this case create no triable issue on fault. The undisputed facts establish that Defendant was aware of conflict between Naeemah and her co-habitants, which facilitated Defendant to obtain civil harassment restraining orders against Naeemah. Indeed, Plaintiff accompanied Defendant to Court each time she sought a civil harassment restraining order. More important, on the night of the incident, Plaintiff knew that Defendant had been transported to the hospital with stab wounds, and he encountered Richard exiting the house covered in blood from his own stab wounds. Yet, Plaintiff decided to enter the house on his own volition where he, too, was stabbed by Naeemah. Based on these facts, there is no triable issue that even if Defendant owed a duty to Plaintiff, he voluntarily assumed the risk when he entered the house to confront the situation rather than wait for the police.
Finally, Defendant has satisfied her prima facie burden on the assault and battery claim against her. In his complaint, Plaintiff alleges that Defendant “struck, touched, and handled” him, causing injury. (Complaint, p. 6.) However, during his deposition, Plaintiff testified that Naeemah attacked him, not Defendant. (Declaration of Cynthia K. Ung, Exhibit A, p. 32.) It is undisputed that Defendant was at the hospital when Plaintiff was attacked. Plaintiff proffers no evidence to rebut this showing.
Conclusion and Order
Based upon the foregoing, the Court grants Defendant Angela Pena’s motion for summary judgment. Defendant is ordered to give notice of this order and file proof of service of such.
DATED: January 29, 2019 ___________________________
Stephen I. Goorvitch
Judge of the Superior Court
[1] The house also was owned by Edward Pena and Monica Dye. Plaintiff voluntarily dismissed both defendants on December 21, 2018.
[2] Defendant’s son also testified that Naeemah had been violent with Richard. (Declaration of Cynthia K. Ung, Exh. B, at p. 35:18-20.) However, Defendant subsequently testified that he never witnessed any fights between Naeemah and Richard and had only “heard it.” (Id., Exh. B.at p. 43:8-12.) Therefore, this evidence is inadmissible.
[3] The unlawful detainer, small claims, and child support/custody proceedings are not relevant. Moreover, the remaining misdemeanor criminal convictions for possession of marijuana and trespass with intent to injure do not support Plaintiff’s argument that it was foreseeable that Naeemah would commit a violent assault against several people.