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Filing # 89422422 E-Filed 05/13/2019 05:38:20 PM
IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT
IN AND FOR MIAMI-DADE COUNTY, FLORIDA
CASE NO.: 2016-019669-CA-01
SECTION: CA27
JUDGE: John W Thornton
EDUARDO A. GONZALEZ GOTERA
Plaintiff(s) / Petitioner(s)
vs.
HCH ENTERPRISES, LLC et al
Defendant(s) / Respondent(s)
/
ORDER GRANTING SANDU' LLC'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE came before the Court of Defendant Sandu, LLC’s (“Sandu”) Amended
Motion for Summary Judgment as to Plaintiff's First Amended Complaint the “Motion”). The
Court, having reviewed the Motion, and the file, having heard argument of counsel on May 3,
2019, and being otherwise fully advised in the premises, it is HEREBY ORDERED AND
ADJUDGED:
1. The Motion is GRANTED and FINAL JUDGMENT is hereby entered in favor of SANDU,
LLC, as follows:
2. The Plaintiff has sued: (1) Billy Bourciquot (“Bourciquot”) for assault and battery; (2)
Bourciquot’s employer, Elite Protection One, LLC (“Elite”), as the independently-
contracted security provider hired by the Rubi Lounge nightclub; (3) HCH Enterprises,
LLC, operating as the Rubi Lounge, (4) Sandu as the property owner, and (5) Neo Vertika
Condominium Association (“Neo Vertika’) as the property's condominium association.
3. Specifically, with regard to Sandu, the Plaintiff brought Count X (Negligence as to Sandu)
and Count XI (Negligent Security as to Sandu). In sum, these claims assert that SanduCaseNo: 2016-019669-CA-01
Page 2 of 6
was negligent with regard to failing to provide reasonable security and/or failing to
properly hire and retain security personnel.t!]
4. Based on the undisputed material facts and the record evidence, the Court finds the
following as true:
a. The subject incident occurred within the Commercial Limited Common Elements of
Commercial Unit E.
b. Commercial Unit E was owned by Defendant Sandu and leased to Defendant
HCH/Rubi Lounge. Pursuant to the lease agreement, the tenant HCH/Rubi Lounge
was responsible for providing any requisite security on the premises
c. HCH/Rubi Lounge hired Defendant Elite to provide security/bouncer services.
d. Defendant Elite hired Bourciquot as a bouncer to work the premises at the time of
the incident.
e. The subject physical altercation occurred between Bourciquot and the Plaintiff.
f. Sandu did not have possession, custody, or control over the Limited Common
Elements at which this incident occurred.
g. Sandu did not hire, nor have control over, Bourciquot.
h. At the time of the incident alleged in the operative Complaint, Sandu did not provide,
nor was it responsible for providing, security personnel for Unit E or its Commercial
Limited Common Elements. In addition, Sandu did not employ or in any way control
Elite Protection One, LLC or its employees, the entity providing security services for
Rubi Lounge at the time of the incident.
i. At the time of the incident, HCH Enterprises, LLC d/b/a Rubi Lounge, had hired Elite
Protection to provide security services for Unit E.
j. Sandu had no business operations within Unit E or its Commercial Limited Common
Elements.CaseNo: 2016-019669-CA-01
Page 3 of 6
k. There was no record evidence of prior similar crimes having occurred at or near the
location of this incident.
|. There was no evidence that the security provided was inadequate.
5. In Florida, the duty to protect others from injury resulting from a dangerous condition on a
premises rests on the party who has the right to control access by third parties to the
premises, be it the owner, an agent, or a lessee of the property. Bechtel Corp. v.
Batchelor, 250 So.3d 187, 196 (Fla. 3d DCA 2018), rev. denied, 2019 WL 1339465 (Fla.
Mar. 26, 2019); Brown v. Suncharm Ranch, Inc., 748 So.2d 1077, 1078 (Fla. 5th DCA
1999).
6. Here, the record does not support the Plaintiff's fundamental contention that Sandu owed
the Plaintiff any legal duty. Indeed, Sandu did not exercise or maintain the right to any
such control over any portion of Unit E or its Commercial Limited Common Elements,
Sandu was not responsible for providing security at the location of the incident occurred,
Sandu did not control the parties to the altercation, and Sandu did not hire, train, retain or
supervise Elite or its employees.
7. Moreover, absent some proximate relationship between a landlord and the employees of
its tenant, a landlord has no duty to protect the leased premises from unforeseeable acts
of restaurant and bar employees. See Smith v. 2J Management Co., Inc., 211 A.D. 2d
418 (App. Div. 1st Dep’t 1995). The Court finds the Smith court's decision persuasive.
8. In Smith, the plaintiff was injured by two bouncers at a restaurant and bar as he was
being escorted out of the premises. Smith, 211 A.D. 2d at 419. “The property, part of a
row of connected stores owned by 2J, was leased to defendants Russo and Paciocco,
assignors of the establishment, Café L.A. Noting that the lease provided the owner to
retain exclusive control and management of the ‘common areas’ (including pedestrian
sidewalks), the [lower court] denied 2J’s motion for summary judgment . . . because ofCaseNo: 2016-019669-CA-01
Page 4 of 6
uncertainty . . . as to where the alleged assault had taken place.” /d. However, the
appellate court reversed the lower court’s denial of the 2J’s—the owner’s—motion for
summary judgment because there was no proximate relationship between 2J and the
bouncers employed by the tenant’s assignees. /d. Notably, in reversing the lower court's
denial of summary judgment, the appellate court in Smith persuasively explained:
[T]he IAS court erred in focusing on control of area or space; the focus should
have been on control of personnel. Even assuming the actual assault took place
outside the restaurant, in a “common area’, the injury suffered by plaintiff had
nothing to do with the landlord’s possession, maintenance or control over that
area, nor with any hazard or physical defect in the property. Rather, the injury
was a direct result of unforeseeable acts by personnel not under 2J’s control.
Whatever authority 2J retained over the common areas of the premises had
nothing to do with the hiring and supervision of employees by the tenants or—to
remove proximateness one further degree—their assignee. Indeed, the lease
called for the tenants to hold the landlord harmless from any personal injury
liability resulting from the acts of their employees or a subtenant’s employees.
Absent some proximate relationship between 2J and the employees of its
tenants’ assignee, the former clearly had no duty to protect plaintiff from the
unforeseeable acts of the latter. Simply the sufferance of a bar operated on
premises does not supply the missing element of foreseeability to a landlord, so
as to impose such a duty.
9. Smith is virtually indistinguishable from this case. Here, Sandu leased Commercial Unit
E to HCH. HCH ran and operated a night club in Commercial Unit E in violation of the
lease agreement. HCH hired Elite to provide security services on the night of the
incident. Elite provided its bouncer, Bourciquot, to provide such security/bouncer
services. The Plaintiff was injured as a direct result of a punch to the face by Bourciquot.
Elite and Bourciquot testified that they never spoke or had contact with Sandu.
Consequently, it is irrelevant where Plaintiff's injury took place, whether inside
Commercial Unit E or its adjacent limited common elements. Just like in Smith, the focus
must be on control of the personnel—Bourciquot. Whatever control Sandu had over the
adjacent limited common elements of the premises has nothing to do with the hiring andCaseNo: 2016-019669-CA-01
Page 5 of 6
supervision of Bourciquot.
10. Thus, there is no record evidence to establish that the subject altercation was
reasonably foreseeable as this was a targeted event between two individuals.
Accordingly, it is hereby
ORDERED AND ADJUDGED the Motion is Granted for the reasons stated here and
on the record.
Final judgment is entered in favor of Sandu and against Plaintiff. Plaintiff shall take
nothing from their claims against Sandu and shall go hence without day. The Court reserves
jurisdiction to determine and appropriate all attorney's fees and costs associated with this
matter, as applicable.
“The specific allegations are omitted from this Order for purposes of brevity.
DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 13th day of May.
2019.
OA Din LLP
2016-019669-CA-01 05-13-2019 5:38 PM
Hon. John W Thornton
CIRCUIT COURT JUDGE
Electronically Signed
No Further Jud Action Required on THIS MOTION
CLERK TO RECLOSE CASE IF POST JUDGMENT
Copies Furnished To:
Brett A Kaplan , Email : wardc@kgplp.comCaseNo: 2016-019669-CA-01
Page 6 of 6
Brett A Kaplan , Email : pleadings@kgplp.com
Brett A Kaplan , Email : kaplanb@kgplp.com
Gregory S Glasser , Email : orozcol@kgplp.com
Gregory S Glasser , Email : monteverdew@kgplp.com
Gregory S Glasser , Email : pleadings@kgplp.com
Jordan M Greenberg , Email : jordan.greenberg@csklegal.com
Jordan M Greenberg , Email : brenda.morales@csklegal.com
Joseph J Goldberg , Email : joe.goldberg@csklegal.com
Joseph J Goldberg , Email : carol.joslin@csklegal.com
Judd G. Rosen , Email : jgrsecy@goldbergandrosen.com
Judd G. Rosen , Email : pleadings@goldbergandrosen.com
Luis Frank Navarro , Email : giselle@nmbesq.com
Luis Frank Navarro , Email : civili@nmbesq.com
Luis Frank Navarro , Email : lbu@nmbesq.com
Michael C. Rotunno , Email : blorenzo@marlowadler.com
Michael C. Rotunno , Email : mrotunno@marlowadler.com
Mustafa Hasan Dandashly , Email : pleadings@goldbergandrosen.com
Mustafa Hasan Dandashly , Email : mdandashly@goldbergandrosen.com
Mustafa Hasan Dandashly , Email : anita@goldbergandrosen.com
Rodrigo S Da Silva , Email : kimberly@rdasilvalaw.com
Rodrigo S Da Silva , Email : carladiaz@rdasilvalaw.com
Rodrigo S Da Silva , Email : rodrigo@rdasilvalaw.com
Rosemarie Thomas , Email : rosemarie.thomas@csklegal.com
wanda tunsil , Email : wtunsii@MARLOWADLER.COM
Preview
Filing # 89422422 E-Filed 05/13/2019 05:38:20 PM IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO.: 2016-019669-CA-01 SECTION: CA27 JUDGE: John W Thornton EDUARDO A. GONZALEZ GOTERA Plaintiff(s) / Petitioner(s) vs. HCH ENTERPRISES, LLC et al Defendant(s) / Respondent(s) / ORDER GRANTING SANDU' LLC'S MOTION FOR SUMMARY JUDGMENT THIS CAUSE came before the Court of Defendant Sandu, LLC’s (“Sandu”) Amended Motion for Summary Judgment as to Plaintiff's First Amended Complaint the “Motion”). The Court, having reviewed the Motion, and the file, having heard argument of counsel on May 3, 2019, and being otherwise fully advised in the premises, it is HEREBY ORDERED AND ADJUDGED: 1. The Motion is GRANTED and FINAL JUDGMENT is hereby entered in favor of SANDU, LLC, as follows: 2. The Plaintiff has sued: (1) Billy Bourciquot (“Bourciquot”) for assault and battery; (2) Bourciquot’s employer, Elite Protection One, LLC (“Elite”), as the independently- contracted security provider hired by the Rubi Lounge nightclub; (3) HCH Enterprises, LLC, operating as the Rubi Lounge, (4) Sandu as the property owner, and (5) Neo Vertika Condominium Association (“Neo Vertika’) as the property's condominium association. 3. Specifically, with regard to Sandu, the Plaintiff brought Count X (Negligence as to Sandu) and Count XI (Negligent Security as to Sandu). In sum, these claims assert that SanduCaseNo: 2016-019669-CA-01 Page 2 of 6 was negligent with regard to failing to provide reasonable security and/or failing to properly hire and retain security personnel.t!] 4. Based on the undisputed material facts and the record evidence, the Court finds the following as true: a. The subject incident occurred within the Commercial Limited Common Elements of Commercial Unit E. b. Commercial Unit E was owned by Defendant Sandu and leased to Defendant HCH/Rubi Lounge. Pursuant to the lease agreement, the tenant HCH/Rubi Lounge was responsible for providing any requisite security on the premises c. HCH/Rubi Lounge hired Defendant Elite to provide security/bouncer services. d. Defendant Elite hired Bourciquot as a bouncer to work the premises at the time of the incident. e. The subject physical altercation occurred between Bourciquot and the Plaintiff. f. Sandu did not have possession, custody, or control over the Limited Common Elements at which this incident occurred. g. Sandu did not hire, nor have control over, Bourciquot. h. At the time of the incident alleged in the operative Complaint, Sandu did not provide, nor was it responsible for providing, security personnel for Unit E or its Commercial Limited Common Elements. In addition, Sandu did not employ or in any way control Elite Protection One, LLC or its employees, the entity providing security services for Rubi Lounge at the time of the incident. i. At the time of the incident, HCH Enterprises, LLC d/b/a Rubi Lounge, had hired Elite Protection to provide security services for Unit E. j. Sandu had no business operations within Unit E or its Commercial Limited Common Elements.CaseNo: 2016-019669-CA-01 Page 3 of 6 k. There was no record evidence of prior similar crimes having occurred at or near the location of this incident. |. There was no evidence that the security provided was inadequate. 5. In Florida, the duty to protect others from injury resulting from a dangerous condition on a premises rests on the party who has the right to control access by third parties to the premises, be it the owner, an agent, or a lessee of the property. Bechtel Corp. v. Batchelor, 250 So.3d 187, 196 (Fla. 3d DCA 2018), rev. denied, 2019 WL 1339465 (Fla. Mar. 26, 2019); Brown v. Suncharm Ranch, Inc., 748 So.2d 1077, 1078 (Fla. 5th DCA 1999). 6. Here, the record does not support the Plaintiff's fundamental contention that Sandu owed the Plaintiff any legal duty. Indeed, Sandu did not exercise or maintain the right to any such control over any portion of Unit E or its Commercial Limited Common Elements, Sandu was not responsible for providing security at the location of the incident occurred, Sandu did not control the parties to the altercation, and Sandu did not hire, train, retain or supervise Elite or its employees. 7. Moreover, absent some proximate relationship between a landlord and the employees of its tenant, a landlord has no duty to protect the leased premises from unforeseeable acts of restaurant and bar employees. See Smith v. 2J Management Co., Inc., 211 A.D. 2d 418 (App. Div. 1st Dep’t 1995). The Court finds the Smith court's decision persuasive. 8. In Smith, the plaintiff was injured by two bouncers at a restaurant and bar as he was being escorted out of the premises. Smith, 211 A.D. 2d at 419. “The property, part of a row of connected stores owned by 2J, was leased to defendants Russo and Paciocco, assignors of the establishment, Café L.A. Noting that the lease provided the owner to retain exclusive control and management of the ‘common areas’ (including pedestrian sidewalks), the [lower court] denied 2J’s motion for summary judgment . . . because ofCaseNo: 2016-019669-CA-01 Page 4 of 6 uncertainty . . . as to where the alleged assault had taken place.” /d. However, the appellate court reversed the lower court’s denial of the 2J’s—the owner’s—motion for summary judgment because there was no proximate relationship between 2J and the bouncers employed by the tenant’s assignees. /d. Notably, in reversing the lower court's denial of summary judgment, the appellate court in Smith persuasively explained: [T]he IAS court erred in focusing on control of area or space; the focus should have been on control of personnel. Even assuming the actual assault took place outside the restaurant, in a “common area’, the injury suffered by plaintiff had nothing to do with the landlord’s possession, maintenance or control over that area, nor with any hazard or physical defect in the property. Rather, the injury was a direct result of unforeseeable acts by personnel not under 2J’s control. Whatever authority 2J retained over the common areas of the premises had nothing to do with the hiring and supervision of employees by the tenants or—to remove proximateness one further degree—their assignee. Indeed, the lease called for the tenants to hold the landlord harmless from any personal injury liability resulting from the acts of their employees or a subtenant’s employees. Absent some proximate relationship between 2J and the employees of its tenants’ assignee, the former clearly had no duty to protect plaintiff from the unforeseeable acts of the latter. Simply the sufferance of a bar operated on premises does not supply the missing element of foreseeability to a landlord, so as to impose such a duty. 9. Smith is virtually indistinguishable from this case. Here, Sandu leased Commercial Unit E to HCH. HCH ran and operated a night club in Commercial Unit E in violation of the lease agreement. HCH hired Elite to provide security services on the night of the incident. Elite provided its bouncer, Bourciquot, to provide such security/bouncer services. The Plaintiff was injured as a direct result of a punch to the face by Bourciquot. Elite and Bourciquot testified that they never spoke or had contact with Sandu. Consequently, it is irrelevant where Plaintiff's injury took place, whether inside Commercial Unit E or its adjacent limited common elements. Just like in Smith, the focus must be on control of the personnel—Bourciquot. Whatever control Sandu had over the adjacent limited common elements of the premises has nothing to do with the hiring andCaseNo: 2016-019669-CA-01 Page 5 of 6 supervision of Bourciquot. 10. Thus, there is no record evidence to establish that the subject altercation was reasonably foreseeable as this was a targeted event between two individuals. Accordingly, it is hereby ORDERED AND ADJUDGED the Motion is Granted for the reasons stated here and on the record. Final judgment is entered in favor of Sandu and against Plaintiff. Plaintiff shall take nothing from their claims against Sandu and shall go hence without day. The Court reserves jurisdiction to determine and appropriate all attorney's fees and costs associated with this matter, as applicable. “The specific allegations are omitted from this Order for purposes of brevity. DONE and ORDERED in Chambers at Miami-Dade County, Florida on this 13th day of May. 2019. OA Din LLP 2016-019669-CA-01 05-13-2019 5:38 PM Hon. John W Thornton CIRCUIT COURT JUDGE Electronically Signed No Further Jud Action Required on THIS MOTION CLERK TO RECLOSE CASE IF POST JUDGMENT Copies Furnished To: Brett A Kaplan , Email : wardc@kgplp.comCaseNo: 2016-019669-CA-01 Page 6 of 6 Brett A Kaplan , Email : pleadings@kgplp.com Brett A Kaplan , Email : kaplanb@kgplp.com Gregory S Glasser , Email : orozcol@kgplp.com Gregory S Glasser , Email : monteverdew@kgplp.com Gregory S Glasser , Email : pleadings@kgplp.com Jordan M Greenberg , Email : jordan.greenberg@csklegal.com Jordan M Greenberg , Email : brenda.morales@csklegal.com Joseph J Goldberg , Email : joe.goldberg@csklegal.com Joseph J Goldberg , Email : carol.joslin@csklegal.com Judd G. Rosen , Email : jgrsecy@goldbergandrosen.com Judd G. Rosen , Email : pleadings@goldbergandrosen.com Luis Frank Navarro , Email : giselle@nmbesq.com Luis Frank Navarro , Email : civili@nmbesq.com Luis Frank Navarro , Email : lbu@nmbesq.com Michael C. Rotunno , Email : blorenzo@marlowadler.com Michael C. Rotunno , Email : mrotunno@marlowadler.com Mustafa Hasan Dandashly , Email : pleadings@goldbergandrosen.com Mustafa Hasan Dandashly , Email : mdandashly@goldbergandrosen.com Mustafa Hasan Dandashly , Email : anita@goldbergandrosen.com Rodrigo S Da Silva , Email : kimberly@rdasilvalaw.com Rodrigo S Da Silva , Email : carladiaz@rdasilvalaw.com Rodrigo S Da Silva , Email : rodrigo@rdasilvalaw.com Rosemarie Thomas , Email : rosemarie.thomas@csklegal.com wanda tunsil , Email : wtunsii@MARLOWADLER.COM