Filed 10/19/10 Steward v. Stratus Security Services CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
Plaintiff and Appellant, E048630
v. (Super.Ct.No. SCVSS145226)
STRATUS SECURITY SERVICES, INC., OPINION
Defendant and Respondent.
APPEAL from the Superior Court of San Bernardino County. Donald R.
Alvarez, Judge. Reversed.
Law Offices of Sandor C. Fuchs, Sandor C. Fuchs; Law Offices of James S.
Miller, James S. Miller; and Evan D. Marshall for Plaintiff and Appellant.
Bradley & Gmelich, Barry A. Bradley and Shirley R. Sullinger for Defendant
Antonio Steward (Steward) and his parents sued Stratus Security Services, Inc.
(Stratus) for negligence.1 The trial court granted summary judgment in favor of Stratus.
(Code Civ. Proc. § 437c.) Steward contends that the trial court erred (1) because he
presented triable issues of fact; (2) because Stratus failed to meet its burden of proof; (3)
by granting various evidentiary objections; and (4) by denying Steward leave to amend
the complaint. We reverse the judgment.
FACTUAL AND PROCEDURAL HISTORY
Cannon Management (Cannon) managed the Aventerra Apartments (Aventerra),
in Fontana. Cannon hired Stratus to provide security services at Aventerra. Cannon did
not permit parties at Aventerra. Quiet hours at the apartment complex were from 10:00
p.m. until 9:00 a.m.
On August 26, 2006, a Stratus security guard was on patrol at Aventerra. At
12:30 a.m., while the guard was making his rounds, he saw a group of eight to ten men
near the rear of the complex. The men ranged in age from 18 to 35 years old. The men
were talking, drinking, and listening to music. The security guard described the scene
as follows: “If you‟d have been there, you wouldn‟t have wanted to be there. I didn‟t
want to be there.” When asked if there was anything in particular about the group of
men that made the security guard uncomfortable, the guard responded, “[I]t was about
1 The first cause of action is titled “Negligence; By Plaintiffs Against All
Defendants.” The cause of action appears to allege multiple wrongful acts, such as (1)
plain negligence; (2) negligent hiring and supervision; and (3) negligent infliction of
10 of them and one of me . . . [¶] . . . [¶] . . . It was just a situation I didn‟t want to be
As the guard observed the group of men, one of the men approached the security
guard. The security guard told the man that someone complained about the noise the
group was making. When the guard finished talking to the man, the guard walked
away. The guard “assumed . . . he would go . . . and they would take care of it.” As the
guard walked away, he heard the volume of the music go down. The guard walked
towards his car. While walking towards his car, the guard saw Steward and two of his
friends sitting on the stairs in the apartment complex‟s courtyard area. The guard
entered his car, rolled up the windows, and began writing his “Daily Activity Report.”
Several minutes later, the group of 10 men approached Steward and his two
friends. Steward was 17 years old, and he and his family lived in Aventerra. Steward
and his friends were sitting down talking. As the group of men approached, Steward
saw the men passing a bottle between them. One of the men, Roosevelt Turner
(Turner), walked up to Steward. Steward had a cigarette tucked behind his left ear, and
Turner said to Steward, “„Gimme your cigarette.‟” Steward responded, “„It‟s my last
one. I‟ll share it with you.‟” Turner then asked Steward, “„Do you gang bang?‟”
Steward responded, “„No.‟” Turner said, “„Well, it looks like you [do].‟” Turner then
reached for the cigarette tucked behind Steward‟s ear. Steward moved his head, and
asked “„What‟s up?‟” Turner and the group of men walked away from Steward.
When Turner was approximately 14 feet away from Steward, he pulled out a
gun, said “„That‟s what‟s up!‟” and began shooting. Steward was unable to get away
from the shots, because the first shot hit him. Steward was shot a total of “[e]ight or
nine times.” Steward fell to the ground and screamed. Police were dispatched to the
apartment complex in response to the shooting, at 12:40 a.m.—approximately 10
minutes after the security guard left the group of men.
Steward was in the hospital for approximately six months. After two months in
the hospital, both of Steward‟s legs were amputated due to gangrene. The gangrene was
caused by the lack of blood circulating to Steward‟s legs due to the gunshot wounds.
Steward contends that the trial court erred by granting summary judgment,
because he raised triable issues of fact regarding duty, breach, and causation. We agree.
“In order to establish liability on a negligence theory, a plaintiff must prove duty,
breach, causation, and damages. [Citation.]” (Conroy v. Regents of University of
California (2009) 45 Cal.4th 1244, 1250.) “A trial court properly grants summary
judgment where no triable issue of material fact exists and the moving party is entitled
to judgment as a matter of law. [Citation.]” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th
465, 476.) “We review the trial court‟s decision de novo, liberally construing the
evidence in support of the party opposing summary judgment and resolving doubts
concerning the evidence in favor of that party. [Citation.]” (State v. Allstate Ins. Co.
(2009) 45 Cal.4th 1008, 1017-1018.) However, we disregard the evidence to which
objections have been made and properly sustained. (Villanueva v. City of Colton (2008)
160 Cal.App.4th 1188, 1194 [Fourth Dist., Div. Two].)
a) Special Relationship
We begin by analyzing the element of duty. “[T]he existence and scope of a
defendant‟s duty is an issue of law, to be decided by a court not a jury. [Citation.]”
(Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.) “As a general
matter there is no duty to act to protect others from the conduct of third parties.
[Citation.] One exception to that general rule is found in the „special relationship‟
doctrine. A defendant may owe an affirmative duty to protect another from the conduct
of third parties, or to assist another who has been attacked by third parties, if he or she
has a „special relationship‟ with the other person. [Citations.]” (Morris v. De La Torre
(2005) 36 Cal.4th 260, 269.) “A special relationship may . . . arise out of a statutory
duty or a contractual duty. [Citation.]” (Seo v. All-Makes Overhead Doors (2002) 97
Cal.App.4th 1193, 1203; Alexandria S. v. Pacific Fertility Medical Center, Inc. (1997)
55 Cal.App.4th 110, 116.) “If a special relationship arises out of a contractual duty,
[then] the duty is owed not only to the parties to the contract but also to those persons
intended to be benefited by the performance of the contract. [Citation.]” (Seo, at p.
We were unable to find a written contract in the record, and, at oral argument, the
parties stated that there was not an express written agreement between Cannon and
Stratus. In Steward‟s opening brief, he writes, “Cannon‟s agreement with Stratus . . .
provided for only a single unarmed guard.” The point heading following that statement
reads, “„House Rules‟ and Patrol Practices.” We infer from Steward‟s use of the terms
“agreement” and “patrol practices” that it is Steward‟s position that an implied contract
existed, the terms of which can be artificially constructed by looking at the parties‟
courses of conduct. (See Varni Bros. Corp. v. Wine World, Inc. (1995) 35 Cal.App.4th
880, 889 [discussing implied contracts].) Consequently, we examine whether there is
evidence supporting a finding that an implied contract existed, which was intended to
Statutory law defines an implied contract as “one, the existence and terms of
which are manifested by conduct.” (Civ. Code, § 1621.) In other words, an implied
contract, like an express contract, consists of obligations arising from a mutual
agreement and intent to promise; however, in an implied contract the agreement and
promise are determined by the parties‟ actions. (Division of Labor Law Enforcement v.
Transpacific Transportation Co. (1977) 69 Cal.App.3d 268, 275.)
The record reflects that either C.F. Aventerra, L.P. or Cannon paid Stratus
approximately $3,000 per month for patrol services from May 2005 through August
2006. Darrell Hill, the Stratus security guard, testified that he patrolled Aventerra in
August 2006. In Stratus‟s response to a demand for inspection of documents, Stratus
admitted that it provided security services for Aventerra. The foregoing evidence
reflects that Stratus provided patrol services at Aventerra in exchange for $3,000 per
month. As a result of this exchange of obligations and promises, we conclude that an
implied contract existed between Stratus and either Cannon or C.F. Aventerra, L.P.
Now that we have concluded that an implied contract existed, we examine
whether a trier of fact could find that a special relationship arose out of the contractual
duty. The special relationship exception was applied to security guards in Marois v.
Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 199-200 (Marois). In
Marois, the appellate court held, “By contracting with [a] business to provide security
services, the security guard creates a special relationship between himself and the
business‟s customers. This relationship, in and of itself, is sufficient to impose on the
guard the obligation to act affirmatively to protect such customers while they are on the
business premises. [Citations.]” (Id. at p. 200, fn. omitted; see also Elizarraras v. L.A.
Private Security Services, Inc. (2003) 108 Cal.App.4th 237, 241-242 [discussing
security guards and the special relationship exception]; see also Trujillo v. G.A.
Enterprises (1995) 36 Cal.App.4th 1105, 1108-1109 [same].)
Cannon or C.F. Aventerra, L.P. contracted with Stratus to provide security
guards at Aventerra. As set forth by Marois, a contract to provide security services
creates a special relationship between a security guard company and a business‟s
customers. Steward was a resident of Aventerra, and therefore, as a “customer” of the
apartment complex, he was a person intended to be benefited by the performance of
Stratus‟s contract. By virtue of this special relationship, Stratus had an affirmative duty
to protect Steward while Steward was at the apartment complex.
b) Scope of the Duty
Now that we have concluded that the contractual relationship imposed a duty on
Stratus, we must determine the scope of the duty.
Within every contract there is an implied duty to perform the agreed upon act
with care and skill. (North American Chemical Co. v. Superior Court (1997) 59
Cal.App.4th 764, 774.) Consequently, as a general rule, when a person or company
contracts to perform security work, then the security guard must act as would a
reasonable security guard under similar circumstances. (Balard v. Bassman Event
Security, Inc. (1989) 210 Cal.App.3d 243, 249, citing Marois, supra, 162 Cal.App.3d at
pp. 199-200.) However, we note that the scope of a security guard‟s duty may be
expanded or limited based upon the terms of a contract. (Putnam v. Village of
Bensenville (2003) 337 Ill.App.3d 197, 208-209.) It appears from the record that
Stratus‟s guards enforced the rules of Aventerra by confronting offenders, patrolling the
grounds, and writing daily reports. In other words, Stratus‟s guards performed typical
security work. We are unable to find anything in the record indicating that the implied
contract contained terms modifying the scope of Stratus‟s general duty to act in the
manner of a reasonable security guard. Accordingly, we conclude that the scope of
Stratus‟s duty extended to acting in the manner of a reasonable security guard under
Next, we determine whether a triable issue of fact has been presented regarding
the element of breach. A security guard breaches his duty when he fails to act “as
would a reasonable security guard under similar circumstances.” (Marois, supra, 162
Cal.App.3d at pp. 199-200.) Accordingly, we must determine whether there is evidence
that Stratus‟s security guard did not act in the manner of a reasonable security guard.
A security expert, R. Bruce Ramm, declared that the Stratus security guard
should have (1) required that Steward and his friends return to Steward‟s apartment,
when he saw them sitting outside, because they were violating the curfew; (2) asked the
group of 10 men if they lived in the apartment complex, in order to determine if they
were residents, visitors, or trespassers; (3) watched the group of men until they were
inside an apartment or left the premises; and/or (4) contacted the police about the group
of men. The security expert also declared that since parties were not permitted at the
apartment complex, the group of men should have been advised to leave the premises.
A trier of fact could infer from the security expert‟s declaration that a reasonable
security guard under similar circumstances would have performed one or more of the
four actions listed ante, because the security expert had over 35 years of experience in
the security field.
The record reflects the Stratus security guard observed the group of men. One of
the men approached the security guard. The security guard told the man that a noise
complaint had been made. After speaking to the man, the guard left, and he could hear
the volume of the music going down as he walked away. The security guard walked to
his car, rolled up the windows, and began writing his “Daily Activity Report.”
The security guard did not ask the men if they resided in the complex; he did not
try to break-up the party; he did not stay to watch if the men went inside an apartment;2
2 At oral argument, Stratus asserted that this court misrepresented the facts,
because in a deposition, the Stratus security guard stated that he observed the men
starting to return to the apartment. We disagree with Stratus‟s assertion. As set forth
ante, when an appellate court reviews a ruling on a motion for summary judgment, the
appellate court looks at the evidence in the light most favorable to the plaintiff. (State v.
Allstate Ins. Co., supra, 45 Cal.4th at pp. 1017-1018.) At one point in the Stratus
security guard‟s deposition, he stated that he “actually observed [the men] starting to
[footnote continued on next page]
he did not escort the men off the property, or watch them leave the property; and he did
not contact the police. Based upon the foregoing evidence, we conclude that a triable
issue of fact exists regarding whether Stratus breached its duty to act in the manner of a
reasonable security guard, because there is evidence that the Stratus security guard‟s
actions did not comport with the actions of a reasonable security guard.3
Stratus contends that a triable issue of fact regarding the element of breach does
not exist because evidence of an imminent danger was not presented. Contrary to
Stratus‟s position, the question is not whether an imminent danger was presented, but
whether the security guard acted in the manner of a reasonable security guard. (Marois,
supra, 162 Cal.App.3d at pp. 199-200.) Consequently, we find Stratus‟s argument
Next, we examine whether a triable issue of fact exists concerning the element of
causation. We conclude that a triable issue of fact does exist.
[footnote continued from previous page]
[go] back into the apartment.” However, at another point in the guard‟s deposition he
testified, “It looked like [the men] were headed back inside the house. And then I
walked back down the driveway.” Based upon this latter portion of the guard‟s
testimony, a trier of fact could infer that the guard did not stay to watch if the men went
inside the apartment, because he could not say that the men did go inside the apartment,
only that it “looked liked” the men were headed inside the apartment. Accordingly, we
disagree that we have misrepresented the facts, because we are presenting the facts in
the light most favorable to Steward.
3The dissent concludes that Stratus did not breach a duty owed to Steward. We
want to clarify, in light of the dissent, that it is not our opinion that Stratus did, as a
matter of law, breach the duty owed to Steward; rather, it is our opinion that a trier of
fact should decide whether Stratus breached the duty owed to Steward.
“An actor may be liable if the actor‟s negligence is a substantial factor in causing
an injury, and the actor is not relieved of liability because of the intervening act of a
third person if [the] act was reasonably foreseeable at the time of the original negligent
conduct. [Citation.] „The foreseeability required is of the risk of harm, not of the
particular intervening act.‟ [Citation.]” (Anaya v. Superior Court (2000) 78
Cal.App.4th 971, 973; see also Rosh v. Cave Imaging Systems, Inc. (1994) 26
Cal.App.4th 1225, 1235.)
a) Substantial Factor
We begin our causation analysis by examining whether a jury could find that
Stratus‟s negligence was a substantial factor in causing Steward‟s injuries. A report
from the Fontana Police Department reflects that police were dispatched to Aventerra at
12:40 a.m., in response to the shooting. The police report further reflects that the
Stratus security guard told the police that he spoke to the group of 10 men at 12:30 a.m.
The security guard told the police that the men were drinking, playing loud music, and
that a noise complaint had been made. As the security guard walked away from the
group of men, he saw Steward and Steward‟s two friends sitting in the location where
Steward was shot.
A jury could find that the security guard‟s failure to act in the manner of a
reasonable security guard was a substantial factor in Steward being shot, due to the
short time period—10 minutes—between the guard speaking to the group of men and
Steward being shot. The jury could infer that if the security guard had stopped the
party, escorted the men off the property, and/or contacted the police, then the shooter
would not have harassed Steward for his cigarette and shot him for failing to relinquish
it. Accordingly, in light of the short time frame between the guard speaking to the
group and the shooting, we conclude that a trier of fact could reasonably find that
Stratus‟s negligence was a substantial factor in causing Steward‟s injuries.
We find support for our conclusion in Mukthar v. Latin American Security
Service (2006) 139 Cal.App.4th 284 (Mukthar). In Mukthar, a convenience store
employee blocked the store‟s exit in an attempt to stop three people from shoplifting.
(Id. at pp. 286-287.) Two of the shoplifters “rushed” at the employee, and the third
shoplifter struck the employee‟s eye. (Id. at p. 287.) The employee claimed that he was
temporarily totally disabled by the injuries sustained during the battery. Latin American
Security Service, Inc. (Security Service) had been hired to provide security at the
convenience store; however, a guard was not present at the time of the incident. (Ibid.)
Security Service moved for summary judgment, and argued that the store employee
could not show that Security Service‟s negligence was the cause of the assault. (Id. at p.
286.) The trial court granted the motion. (Id. at p. 288.) The appellate court reversed.
(Id. at p. 286.)
The appellate court focused on whether there was evidence that the assault would
not have occurred if the guard had been present, i.e., whether Security Service‟s failure
to exercise reasonable care resulted in the employee‟s injuries. (Mukthar, supra, 139
Cal.App.4th at p. 291.) The appellate court noted that the security guard was supposed
to stand next to the door that the employee blocked. The appellate court concluded that
it was “more likely than not” that the shoplifter would not have struck the employee if
an armed guard had been standing next to the doorway. (Ibid.) Accordingly, the
appellate court concluded that it would not be conjecture for a trier of fact to find that
the security guard could have prevented the assault, because a reasonable inference
could be drawn from the evidence. (Ibid.)
We find Mukthar to be supportive of our conclusion, because in the instant case a
trier of fact could reasonably infer that if the security guard had escorted the men off of
the property or watched them enter the apartment, then the shooting would not have
occurred. Similar to the Mukthar court, we are not concluding that this inference is
correct, rather, we are concluding that it would not be speculation for a jury to make
such a finding, because a reasonable inference can be drawn from the evidence.
Stratus argues that a trier of fact could only speculate that the security guard
could have prevented the shooting. Stratus asserts that if the security guard had
watched the men enter an apartment, then the men could have exited the apartment
when the security guard left, and then shot Steward. Further, Stratus asserts that if the
security guard had watched the men leave the complex, then Steward could have still
been shot while the security guard watched.
As we have explained ante, a trier of fact could reasonably conclude that the
security guard‟s failure to (1) assess which men, if any, were residents; (2) stop the
party; (3) escort the loiterers off the property; and/or (4) contact the police, at 12:30
a.m., was a substantial factor in Steward being shot at 12:40 a.m. Consequently, we
conclude that there is a triable issue of fact on the element of causation.
Stratus contends that there is not a triable issue on the element of causation
because there is no evidence that the group seen by the security guard is the same group
that approached Steward. The security guard described the group of men he saw at
12:30 a.m. as eight to ten black males, ranging in age from 18 to 35; all the men were
wearing baggy clothing, and they were drinking. The group of men that approached
Steward slightly before 12:40 a.m. were described as approximately 10 black males, “a
little bit older” than Steward, who was 17, and they were passing a bottle between them.
Turner was described as wearing “baggie clothes.” Given the 10 minute time frame and
similar descriptions, a trier of fact could reasonably infer that the group seen by the
security guard was the same group that approached Steward. Consequently, we find
Stratus‟s argument unpersuasive.
Next, we analyze whether a trier of fact could conclude that Stratus should not be
relieved of liability—as a result of Turner‟s intervening act of shooting Steward—
because the risk of the shooting was foreseeable.
The regional manager for Cannon, who was in charge of Aventerra, testified that
Cannon “took over” Aventerra in 2003. One week prior to Cannon taking control of the
Aventerra, there was a shooting in the complex‟s parking lot. Also prior to Cannon
managing Aventerra, there had been prostitution, drug use, thefts, and loitering at the
The Stratus security guard saw a group of approximately 10 men talking and
drinking in front of an apartment. The security guard could not hear the men‟s
conversation because there was loud music playing. The security guard said the
following when describing the group: “Let me say this: If you‟d have been there, you
wouldn‟t have wanted to be there. I didn‟t want to be there.” When the security guard
was asked if there was a reason he felt uncomfortable, he explained, “The fact that, like
I said, it was about 10 of them and one of me.” The security guard then said, “It was
just a situation I didn‟t want to be in.”
As the security guard observed the group, one of the men from the group
approached the security guard. The security guard explained to the man that a noise
complaint had been made; when the guard finished speaking to the man, the guard left.
As the guard walked away, he could hear the volume of the music going down, and he
saw Steward and his friends sitting in the area where Steward was shot. The security
guard walked to his car, rolled up the windows, and began writing his “Daily Activity
Report.” The security guard was not present at the complex when Steward was shot;
however, when the security guard spoke to the police that night, he told the police about
the group of men that had been gathered at the complex, “[b]ecause [he] had a feeling
that it might have been related.”
Based upon the security guard‟s comments that he did not want to interact with
the group of men, a jury could infer that criminal conduct was foreseeable. The guard‟s
statement that he was uncomfortable because there were 10 men and “one of [him]”
further supports an inference that the guard foresaw the group engaging in violent
criminal conduct. Further, from the security guard‟s testimony that he saw Steward
sitting outside, the jury could infer that Steward was a foreseeable victim of the criminal
conduct. In sum, based upon the evidence, a trier of fact could conclude that violent
criminal conduct involving Steward was foreseeable.4
In sum, Stratus owed a duty to Steward. Whether the security guard acted
reasonably under the circumstances and whether his acts were a cause of Steward‟s
injuries are questions of fact to be resolved by trial, not summary judgment. (See
Trujillo v. G.A. Enterprises, supra, 36 Cal.App.4th at p. 1109 [similar conclusion]; see
also Marois, supra, 162 Cal.App.3d at p. 202 [same].)
B. NEGLIGENT HIRING, TRAINING AND SUPERVISION
We briefly address Steward‟s contention that the trial court erred by granting
summary judgment because Stratus did not address Steward‟s claim of negligent hiring,
training, and supervision. We disagree with Steward‟s contention.
Liability for negligent hiring, training, and supervision “„is limited by basic
principles of tort law, including requirements of causation and duty.‟ [Citation.]”
(Phillips v. TLC Plumbing, Inc. (2009) 172 Cal.App.4th 1133, 1140.) In Stratus‟s
motion for summary judgment, it argued that it did not owe Steward a duty and that it
was not the cause of Steward‟s injuries. The trial court found that Steward did not
establish the elements of duty and causation. By addressing the elements of duty and
4 The dissent notes that even if Stratus did breach the duty owed to Steward,
then Steward‟s appeal would fail because the harm was not foreseeable. In light of the
dissent, we want to clarify that it is not our opinion that the harm to Steward was
foreseeable as a matter of law; rather, it is our opinion that a trier of fact should decide
whether the harm to Steward was foreseeable.
causation, Stratus and the trial court addressed Steward‟s claim for negligent hiring, and
therefore, we find Steward‟s argument unpersuasive.
Stratus contends that Steward did not allege a cause of action against Stratus for
negligent hiring and supervision. Our review of Steward‟s first amended complaint
reflects that Steward did allege that Stratus was negligent in hiring and supervising the
security guard. Steward‟s complaint alleges (1) plain negligence; (2) negligent hiring
and supervision; and (3) negligent infliction of emotional distress, under one heading:
“First Cause of Action: Negligence; By Plaintiffs Against All Defendants.” (See
Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1257 [discussing multiple theories liability
presented in a single cause of action].) Consequently, we are not persuaded that
Steward did not sue Stratus for negligent hiring and supervision.
C. EVIDENTIARY RULINGS
For the sake of thoroughness, we will address Steward‟s contention that the trial
court erred by sustaining three of Stratus‟s evidentiary objections. We disagree with
We review the trial court‟s evidentiary rulings for an abuse of discretion. (Great
American Ins. Companies v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 449.)
1. PATROL LOG
First, Steward contends that the trial court erred by sustaining Stratus‟s objection
to the “Central Valley Metropolitan Patrol Miscellaneous Log Report.” Stratus objected
to the Log Report because (1) there was a lack of foundation; (2) the report was hearsay;
and (3) it was irrelevant. “„Relevant evidence‟ means evidence, including evidence
relevant to the credibility of a witness or hearsay declarant, having any tendency in
reason to prove or disprove any disputed fact that is of consequence to the determination
of the action.” (Evid. Code, § 210.) The Log Report is dated October 26, 2004; the
shooting incident in the instant case occurred on August 26, 2006. The Log Report
reflects that a car was parked in a red zone near Aventerra and that there was “very
heavy rain.” We do not see the relevance of the Log Report, because it is dated almost
two years before the shooting, and contains no information about other violent incidents
in the area. Accordingly, we conclude that the trial court did not abuse its discretion by
sustaining Stratus‟s objection because the evidence was not relevant. (Evid. Code,
2. POLICE DISPATCH LOG
Next, Steward contends that the trial court erred by sustaining Stratus‟s objection
to the police call log from the night of the shooting. The call log documents the time
that the shooting was reported to the police. Stratus objected to the call log because it
(1) lacked foundation; (2) was irrelevant; and (3) was hearsay. “Evidence of a writing
made as a record of an act, condition, or event is not made inadmissible by the hearsay
rule when offered to prove the act, condition, or event if: [¶] (a) The writing was made
in the regular course of a business; [¶] (b) The writing was made at or near the time of
the act, condition, or event; [¶] (c) The custodian or other qualified witness testifies to
its identity and the mode of its preparation; and [¶] (d) The sources of information and
method and time of preparation were such as to indicate its trustworthiness.” (Evid.
Code, § 1271.)
The call log reflects that the shooting was reported to the police at 12:40 a.m.
The call log appears to have been printed out from a computer—it does not include any
information from the custodian of records or any information regarding where it
originated from or how it was prepared.5 Steward‟s attorney declared that the call log
was a “true and correct copy” of the police call log, and that it was “produced in
response to [a] subpoena.” Steward‟s attorney asserted that the call log was admissible
as a record by a public employee. (Evid. Code, § 1280.)
The trial court properly sustained Stratus‟s objection because there is no proof
that the call log was (1) prepared by a public employee acting within the scope of his or
her duties; (2) made at or near the time of the shooting; and (3) that the sources of
information and method of preparation were such as to indicate the trustworthiness of
the call log.
3. INCIDENT REPORT
Steward contends that the trial court erred by sustaining Stratus‟s objection to an
incident report. Stratus objected to the incident report because it lacked foundation and
was hearsay. The incident report is a document that appears to have been printed from a
computer. The document is titled “Aventerra II Incident Report 8/26/06”; however, the
5 We note that the record contains a declaration from the custodian of the
Fontana Police Department‟s records certifying that records pertaining to Steward were
made in the regular course of business. The declaration refers to “all the records called
for in the attached Subpoena”; however, there is no subpoena attached to the
declaration; therefore, we cannot determine what documents are being referred to in the
report does not include any information about who authored the report or when it was
We conclude that the trial court did not abuse its discretion by sustaining the
objection because there was no evidence (1) the writing was made in the regular course
of business; (2) the writing was made at or near the time of the act, condition, or event;
(3) explaining the mode of its preparation; and (4) explaining that the information and
method and time of preparation were such as to indicate its trustworthiness. (Evid.
Code, § 1271.)
Steward‟s attorney declared that the report was prepared by “Karen Smith a
supervisor for defendant Cannon Management produced in discovery.” Steward‟s
attorney argued that the document was not hearsay because it was the statement of a
party opponent. There is nothing on the document identifying it as the statement of a
party opponent. Accordingly, we are not persuaded that the trial court‟s ruling was
arbitrary or irrational.
In sum, the trial court did not abuse its discretion by sustaining Stratus‟s
The judgment is reversed. Costs on appeal are awarded to appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RICHLI, J., Dissenting.
The conduct of the security guard in this case did not breach any duty.
Moreover, it was not reasonably foreseeable that his conduct would cause Roosevelt
Turner‟s senseless explosion of violence. Hence, I must respectfully dissent.
I accept that Stratus Security Services, Inc. (Stratus) had a contractual duty to
protect residents of Aventerra Apartments, including plaintiff Antonio Steward. (See
generally Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193
(Marois).) However, this was not a duty to protect residents against any and all
hazards; Stratus was not an insurer of their well-being. Rather, as Steward‟s expert
witness testified, and as the majority apparently accepts (maj. opn., ante, at pp. 8-9),
Stratus‟s duty to protect was defined in terms of its other contractual duties, such as its
duty to remove loiterers and trespassers and to call the police in the event of crime.1
1 I do not agree that it had a contractual duty to break up parties. (Maj. opn.,
ante, at p. 9.) It had a contractual duty to enforce the “house rules” (which were in
evidence) and the “crime-free lease addendum” (which was not).
The property manager did testify that “[p]arties were not permitted.” She added,
however, “[I]f residents gave parties unbeknownst to us, as long as . . . they kept it
confined to inside their dwelling unit and it wasn‟t disturbing other residents, we didn‟t
have a problem with it.”
The lease prohibited “loud or late parties or music.” Similarly, the house rules
provided, “Unnecessarily loud noise due to . . . [a] party . . . is not permitted.” By
negative implication, quiet parties were allowed.
Thus, it is not a reasonable inference from the record as a whole that guards were
supposed to stop any and all parties.
The group of 10 or so young Black males, however, were neither loiterers nor
trespassers. They were out in front of apartment I 144. The door of the apartment was
open; the loud music was coming from inside. The security guard testified that he
talked to one of the men; “immediately” after that, the music went down, and “[i]t
looked like they were headed inside the house.” Also after that, he testified, “[T]he
tenant came up and asked me was it because of the loud music or the people being
outside of the apartment. And I told him I didn‟t know. And then he told me that he
would do like I ask[ed].”
Thus, in light of all of the information available to the guard, the men were
guests of the tenant in apartment I 144. Moreover, based on the guard‟s own
perceptions, as well as the tenant‟s assurances, he had every reason to think they were
going inside. Even if he had personally watched them all go inside, there would have
been nothing to stop them from coming back out again. Surely he was not supposed to
keep watch over the apartment all night; that would have kept him from performing his
duties — including his duty to protect — elsewhere at the complex. And last but not
least, no crime had been committed, so there was nothing to call the police about.
In Marois, the court held that a private security company hired by a fast-food
restaurant had a duty “to act affirmatively to protect . . . customers while they are on the
business premises.” (Marois, supra, 162 Cal.App.3d at p. 200, fn. omitted.) However,
that was not the only holding of the court that is significant here. In that case, one Terry
Hunt, who had a bloody face and clothes, entered the restaurant and went into its
bathroom. A guard asked him to leave. He did, but he only went as far as the parking
lot. (Id. at p. 196.) About 20 minutes later, Hunt and a second man used a baseball bat
to vandalize another business in the parking lot. Plaintiff Marois, a customer of the
restaurant, got into a fight with them. Marois was retreating, however, when Hunt hit
him with the baseball bat. (Id. at p. 197.) The court specifically held that, once the
guards asked Hunt to leave the restaurant, they had no duty to make sure that he also left
the parking lot: “To insure compliance with their directive, the guards would have had
to focus on Hunt to the exclusion of their other responsibilities. In addition, Hunt‟s
cooperative conduct following [the guard]‟s initial request gave them no reason to
suspect a continuing problem.” (Id. at p. 200.) “As a matter of law, . . . a reasonable
jury could not find that [the guards] were negligent” at that point. (Id. at p. 201.) Here
— identically — the guard had no duty to focus on the group of young Black males to
the exclusion of his other responsibilities, and their cooperative conduct gave him no
reason to suspect any continuing problem.
Even if I were to agree that the security guard breached a duty, I would still
conclude that the harm to Steward was not reasonably foreseeable. In discussing
foreseeability, the majority focuses on the security guard‟s own testimony that he
“didn‟t want to be there” because there were “about 10 of them and one of me.” (Maj.
opn., ante, at pp. 14-15.) He added that what concerned him was “the unknown
element . . . .” All of this testimony, however, goes to his state of mind before he
contacted the group. After he did, the tenant agreed to comply, the music went down,
and the men appeared to be headed inside; the “unknown element” was gone. There
was no apparent threat to residents of the apartment complex.2
The majority also relies on the security guard‟s testimony that, when a police
officer interviewed him about the shooting, he “told him about the gathering at
[apartment] I 144” because he “had a feeling that it might have been related.” (Maj.
opn., ante, at p. 15.) This reasoning, however, substitutes hindsight for foreseeability.
Of course, once the guard knew there had been a shooting, he would tell the officer
about the young Black males who had been playing loud music; presumably he would
also tell them about anything else out of the routine that had happened that evening.
But that is not evidence of foreseeability.
Plaintiff Steward‟s injuries are horrific. His life has been devastated, as have the
lives of those around him. The legal blame for that, however, belongs to Roosevelt
Turner, as well as to the gang culture in which it is de rigueur to fire eight or nine shots
at somebody who fails to give you their cigarette on demand. It does not belong to the
employer of a security guard who was just doing his job.
2 The security guard also testified that he had a “vibe” or a “feeling” that the
first man he talked “might be possibly gang affiliated . . . .” He stated, “It‟s a black
thing. That‟s the only way I know how to describe it.” The majority does not mention
this testimony and does not consider it in connection with its foreseeability analysis. I
therefore see no need to consider it, either. If I did, however, I would still conclude that,
in light of the group‟s prompt compliance, this “vibe” alone did not make violence
foreseeable. And finally, even if it did, I fail to see what the guard was supposed to do
about it. He could not prevent tenants from having guests who were gang members.