Vitale v. A&B Investments, Inc. CA1/5

Opinion

Filed 9/16/26 Vitale v. A&B Investments, Inc. CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

ROBYN VITALE, Plaintiff and Appellant, A170102 v. A&B INVESTMENTS, INC., (Alameda County Super. Ct. No. Defendant and Respondent. HG20052739)

Robyn Vitale appeals from the trial court’s grant of summary judgment on his negligence claim against A&B Investments, Inc. He asserts that the trial court should not have rejected his claim that, after he was assaulted in the parking lot of a liquor store owned by A&B, A&B breached its duty to call 911. We affirm.

BACKGROUND

A.

The assault occurred in February 2018, on the evening of Super Bowl Sunday. A&B’s owner, Ahmad Rasheed, had hired Vitale to power wash the parking lot of the liquor store. Rasheed was not present at the store at the time, but a clerk was on duty that night.

While Vitale was power washing, Flora Gomez and Marcos Diaz drove into the parking lot. After Vitale attempted to stop 1 them from entering an area he had cordoned off, an altercation ensued in which Vitale sprayed Gomez and Diaz with the power hose and Diaz grabbed a broom and hit Vitale with it. Vitale fell to the ground and others in the parking lot came to his aid. The incident happened “pretty quickly” and lasted less than a minute.

The police arrived and put Diaz in a police car before ultimately transporting him to jail. Diaz was later charged with felony assault and convicted.

According to Vitale, he “suffered serious bodily injuries to his left arm, shoulder, back, head, neck and lower body,” and he was “transported to the hospital for medical treat[]ment and care.”

Rasheed testified about the incident at a deposition in 2023. By that time, over five years after the assault, he was unable to provide the last name or address of the clerk who was on duty that night. Rasheed testified that the clerk called him after the incident and told him that he “went outside and -- because I think some customer came in and told him there’s something going on outside, there’s a fight going on outside, or there’s something outside. And so he went out there.” When asked whether the clerk told him he had called the police, Rasheed responded: “I think by the time he went out there, I think somebody already called the Sheriff when he found out there’s something going on. The Sheriff had already been called.”

B.

Vitale’s negligence complaint alleged that A&B failed in its duty “to take reasonable steps to secure the business premises against foreseeable negligent and criminal acts of third parties that were likely to occur in the absence of precautionary measures.” A&B did not take “any steps to prevent and halt assaults on persons legally on the premises such as Plaintiff.” In addition, A&B “breached its duty as a business owner to Plaintiff 2 when its employee observed the assault on Plaintiff in the parking lot, and heard Plaintiff’s cries for help, but failed and refused to call 911 or otherwise attempt to intervene or prevent further harm.”

A&B’s summary judgment motion argued that Vitale was unable to establish a cause of action for negligence. A plaintiff asserting negligence must establish that the defendant held a duty; the defendant breached that duty; and the defendant’s breach was the proximate cause of the plaintiff’s injury. (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083.) A&B argued that summary judgment was warranted because Vitale’s evidence of duty and causation was insufficient.

The trial court must grant summary judgment when there is no disputed issue of material fact and the movant is entitled to judgment as a matter of law. (See Code Civ. Proc., § 437c, subd. (c).1) Section 437c, subdivision (p)(2), provides that in moving for summary judgment, a “defendant . . . has met that party’s burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” Once the defendant has met that burden, the burden shifts to the plaintiff to produce specific facts raising a triable issue of material fact as to the cause of action. (See § 437c, subd. (p)(2); Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274 (Lyle).)

Vitale’s opposition to the summary judgment motion argued that A&B violated its duty to “prevent” violent harm to him while he was performing work for them, by failing “to take safety precautions to prevent an attack” and “fail[ing] to provide a safe working environment.”

Undesignated statutory references are to the Code of Civil 1 Procedure. 3 In granting the motion, the trial court held that A&B did not owe Vitale a duty of care. The court reasoned in part that although the proprietor of a business generally owes invitees a duty to control the reasonably foreseeable wrongful acts of third persons, Vitale had failed to raise a triable issue of fact on the foreseeability of the assault. The only admissible evidence in the record was that Rasheed was unaware of any violent crime in the vicinity of the store in the last decade.2 The trial court also reasoned that based on the undisputed facts, there was “little relation between [A&B’s] conduct and the injury” and Vitale’s “injuries resulted from parties unaffiliated with” A&B. In addition, the trial court noted that although Vitale “suggest[ed] that the employee failed to call the sheriff even though he was aware of the altercation[,] . . . the testimony cited by [Vitale] states that the employee ‘had no idea’ that there was an altercation ‘because he was inside’ and by the time he went outside ‘somebody already called the Sheriff.’ ”

DISCUSSION

Vitale contends that the trial court erred in granting summary judgment because A&B did not negate his allegation that it breached its duty to help by failing to call 911.3 On our de 2 The trial court rejected a declaration by Vitale’s security consultant which opined that the liquor store was located in a high crime area. The court reasoned that the consultant’s declaration failed to establish the basis of his expert opinion and relied on hearsay and unauthenticated material. The court also rejected an underwriting report from A&B’s insurer because it was unauthenticated hearsay. Vitale does not challenge these evidentiary rulings on appeal. 3 Vitale’s trial court brief in opposition to summary judgment did not argue that A&B breached a duty of care when its employee failed to call 911. His statement of facts did assert, however, that “[t]he clerk . . . failed to call the sheriff even though he was aware of an altercation involving a customer and even 4 novo review (Lyle, supra, 38 Cal.4th at p. 274), his contention lacks merit.

In some circumstances, “a proprietor’s special-relationship- based duty to its patrons or invitees includes an obligation” to call 911 or take other minimal measures to summon aid for a victim of criminal conduct. (Morris v. De La Torre (2005) 36 Cal.4th 260, 277.)

Assuming that A&B generally had such a duty here, we agree with A&B that there was no triable issue of material fact that its actions or omissions caused harm to Vitale. The only evidence in the record regarding the actions of the clerk was Rasheed’s deposition testimony that by the time the clerk learned of the incident and went outside to the parking lot on the night of the assault, someone else had already called the sheriff. Vitale argues that Rasheed’s testimony about the clerk’s actions is inadmissible hearsay, but Vitale forfeited that contention by failing to assert it below, and indeed, he affirmatively submitted and relied on this testimony as part of his opposition to summary judgment. (See § 437c, subd. (b)(5) [“Evidentiary objections not made at the hearing shall be deemed waived.”].)

Vitale contends that Rasheed was “unclear” about whether law enforcement authorities had been called by the time the clerk went outside. Although he used the phrase “I think” to preface some statements, Rasheed testified without caveat that “[t]he Sheriff had already been called.” Vitale points to no evidence to the contrary.

To the extent Vitale asserts that a delay in calling the sheriff compounded his injuries, he has not pointed to any facts indicating that there was any delay or that he suffered injury as a result. It is undisputed that the altercation was “pretty went outside the store when he heard there was a fight going on,” citing Rasheed’s deposition testimony. 5 quick[]” and lasted about a minute. Vitale testified at his deposition that once Diaz hit him, bystanders “came to [his] aid[].” He presented no evidence about how long it took for the authorities to arrive. Nor did he present any evidence that the assault continued until the authorities arrived or that any delay in their arrival otherwise worsened his injuries. Indeed, Vitale’s reply brief wholly ignores A&B’s argument that there is no triable issue of material fact on causation.

Vitale also argues that “there [wa]s no evidence of . . . whether the A&B employee called an ambulance.” Because the record contains no evidence that the clerk failed to call an ambulance, however, Vitale cannot raise a triable issue of material fact that he was harmed based on breach of any duty to make such a call.

In sum, A&B was entitled to summary judgment because Vitale is unable to establish his cause of action for negligence based on failure to call 911. (See § 437c, subds. (c), (p)(2).)

DISPOSITION

The judgment is affirmed.

BURNS, J. WE CONCUR:

JACKSON, P. J. SIMONS, J.

Robyn Vitale v. A&B Investments, Inc. (A170102)