Tentative Rulings

Case Number: ****9198    Hearing Date: November 18, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

Background

Plaintiff Damian Perez (“Plaintiff”) alleges that he is a former gang member who lived at a rehabilitation home (the “Home”) owned and operated by Defendants Victory Outreach International and Victory Outreach Salinas. Defendant Nicholas Langerica (“Defendant”) was the assistant pastor for the region of Victory Outreach International that included the home. Plaintiff alleges that he was required to perform community service work outside the residence, even though his visible tattoo made him a target for gang members, and that he was shot as a result. Defendant moves for summary judgment on Plaintiff’s complaint for negligence. Plaintiff opposes the motion, which is granted.

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

A. Summary

To state a claim for negligence, Plaintiff must show that Defendant had a duty to Plaintiff, that Defendant breached that duty, and that the breach caused damages to Plaintiff. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)

B. Duty

The Court grants summary judgment because there is no triable issue whether Defendant owed Plaintiff a duty. In support of his motion, Defendant proffers his own declaration, which states that he did not supervise or oversee the home at the time of the shooting. (Declaration of Nicholas Langarica, ¶ 6.) Specifically, Defendant states:

I had no duties or supervisory responsibilities at the Home when [Plaintiff] was there. I would, on occasion, go to the Home as a church leader and meet with residents to provide help with their progress in adjusting to life out of prison. I did not supervise the operation of the Home and I had no involvement in its supervision, such as assigning the residents to community service.

(Ibid.) It is undisputed that Plaintiff resided at the Home voluntarily. (Plaintiff’s Separate Statement of Undisputed Facts, ¶ 13.) This evidence is sufficient to satisfy Defendant’s burden, shifting the burden to Plaintiff.

In opposition, Plaintiff relies on his own declaration. Plaintiff states that Defendant told him that he “really needed to get the tattoo removed.” (Declaration of Damien Perez, ¶ 14.) Plaintiff states that Defendant “always asked what was going on with the tattoo and why [Plaintiff] still had it.” (Ibid.) According to Plaintiff, in order to have the tattoo removed, he needed a letter verifying that he had completed twenty hours of community service, and that Defendant said he would ask co-Defendant Raul Astorga to write the letter. (Declaration of Damien Perez, ¶¶ 15-16.) This evidence is insufficient to create a triable issue whether Defendant had any duty toward Plaintiff because it does not establish that Defendant had any supervisory responsibility over the house or its residents. The mere fact that Defendant offered to help Plaintiff obtain the required letter does not give rise to a duty.

Nor does this evidence suggest that Defendant has liability for the acts of a third party. “A person who has not created a peril is ordinarily not liable in tort merely for failure to take affirmative action to assist or protect another, unless there is some [r]elationship between them which gives rise to a duty to act.”  (Winkelman v. City of Sunnyvale (1976) 59 Cal.App.3d 509, 512, internal quotations omitted.) Plaintiff argues that the promise of tattoo removal upon completion of twenty hours of community service gives rise to such a special relationship. Even if Plaintiff is correct, as discussed above, Defendant has proffered evidence, which Plaintiff does not controvert, that Defendant did not oversee the home at the time of the shooting. In other words, any agreement between Plaintiff and the home giving rise to a special relationship does not support liability against Defendant. Therefore, the Court grants summary judgment because there is no triable issue whether Defendant owed Plaintiff a duty.

C. Breach

In the alternative, the Court grants summary judgment because there is no triable issue whether Defendant breached any duty. As discussed, Defendant proffers evidence that he was not involved in assigning community service work. Moreover, it is undisputed that:

Plaintiff knew that residents of the Home were expected to work at various locations, with pay for their work hours going to the Home for expenses, but they volunteered to do this. Plaintiff told Astorga that there were places he did not want to do, and they did not force him to go there. He did not want to go to Chinatown and they never sent him to Chinatown to pass out flyers.

(Id., ¶ 18.) This satisfies Defendant’s burden, and Plaintiff proffers insufficient evidence to create a triable issue. At best, Plaintiff’s evidence suggests that Astorga, and not Defendant, failed to provide the letter. Assuming this was a breach of a duty, Defendant is not responsible because, as discussed, he did not supervise Astorga or the Home, and there is no evidence that he failed to speak to Astorga about providing a letter. Therefore, in the alternative, the Court grants summary judgment because there is no triable issue whether Defendant breached any duty.

D. Causation

In the alternative, the Court grants summary judgment because there is no triable issue whether Plaintiff was shot because of the gang tattoo. Defendant argues that the shooting was not related to the tattoo because the shooting occurred at night, i.e., when the tattoo was not easily visible to the shooter. (Id., ¶ 36.) Defendant also relies on Plaintiff’s admissions that: (1) He did not see any strangers or anyone matching the shooter’s description at the church service earlier that day; (2) He did not see anyone waiting in the church’s parking lot when he left; and (3) He did not see anyone follow him. (Id., ¶¶ 34-35.) This satisfies Defendant’s burden, shifting the burden to Plaintiff.

Plaintiff cannot satisfy his burden. Plaintiff states: “I have a gang tattoo, NR, on my neck, that I believe was the reason I was shot.” (Declaration of Damien Martinez, ¶ 4.) This evidence lacks foundation and is not sufficient to give rise to a triable issue on causation. Although the shooter allegedly identified Plaintiff by name, that does not mean the shooting was gang related. The mere fact that police officers “focused on the evidence which indicated a gang shooting” does not mean this was a gang shooting. Plaintiff proffers no expert testimony suggesting that the shooting was gang related. In sum, Plaintiff has nothing more than speculation supporting his theory that he was shot because of his gang tattoo. Therefore, in the alternative, the Court grants summary judgment because there is no triable issue whether the shooting was caused by the gang tattoo.

E. Assumption of Risk

Finally, Defendant argues that Plaintiff voluntarily assumed the risk of being shot when he chose to appear in public without covering his tattoo. The Court need not reach this issue since it is granting summary judgment based upon the failure to establish a triable issue on duty, breach, and causation.

CONCLUSION AND ORDER

Defendant’s motion for summary judgment is granted. Defendant shall provide notice and file proof of such with the Court.

DATED: November 18, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: ****9198    Hearing Date: November 05, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Department 5

Plaintiff Damian Perez (“Plaintiff”) alleges that he is a former gang member who lived at a rehabilitation home that Defendants Victory Outreach International and Victory Outreach Salinas owned and operated. Defendant Nicholas Langerica (“Defendant”) was the assistant pastor for the region of Victory Outreach International that included the home. Plaintiff alleges that his performance of volunteer work was a condition of his residence in the home. Plaintiff alleges that Defendant negligently required Plaintiff to perform volunteer work outside the home, even though his visible tattoo make him a target for gang members. Plaintiff contends that he was shot as a result of Defendant’s requirement that he volunteer outside the home.

Defendant filed a motion for summary judgment on May 6, 2019, which was noticed for hearing on November 5, 2019. Plaintiff filed an opposition on October 30, 2019, which is only four court days before the hearing. Plaintiff has violated Code of Civil Procedure section 1005, which requires that an opposition be filed nine court days before the hearing. Therefore, the Court continues the hearing on this motion to November 18, 2019, at 1:30 p.m. Defendant may file a reply brief within statutory time periods. The Court’s clerk shall provide notice of the continuance.

DATED: November 4, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court