Judge Anne Hwang, Case Number: 19STCV45568, Date: 2024-01-19 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities; Declaration of James F.B. Sawyer

On December 17, 2019, Plaintiff Sacha Agopian, by and through his GAL Christine Agopian (“Plaintiff”) filed a complaint against Westfield Corp, and Does 1 to 50 for negligence and premises liability alleging that on October 20, 2018, a fire alarm was negligently activated at a shopping mall which caused people to run away. “[D]uring the course of escape from the false alarm, Plaintiff a minor, was thrown to the floor causing significant physical injury.” (Complaint, 4.)

On March 30, 2020, Plaintiff filed the operative first amended complaint (“FAC”) ostensibly alleging the same causes of action, but without providing any attachments or written allegations. On May 18, 2021, Defendant Sherman Oaks Fashion Associates, LP filed a cross complaint against Moving Defendant ARDI VIII International, LLC dba Charley’s Grilled Subs (“ARDI”) alleging that the false alarm originated from a business operated by ARDI.

ARDI now moves for summary judgment arguing that Plaintiff cannot prove that it owed a duty or that the alleged breach caused Plaintiff’s injuries. Plaintiff opposes and ARDI replies.

“[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.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

The Court declines to rule on ARDI’s evidentiary objections on the basis that they have no effect on the ruling herein.

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.) Liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril. (Cody F. v. Falleti (2001) 92 Cal.App.4th 1232, 1242.)

To determine the existence and scope of duty, courts consider the foreseeability of harm to the plaintiff, 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, and the extent of the burden to the defendant of imposing a duty to exercise care with resulting liability for breach. (Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

“[I]n analyzing duty, the court's task “is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” [Citation.] Viewed in this light, the question of foreseeability in a “duty” context is a limited one for the court, and readily contrasted with the fact-specific foreseeability questions bearing on negligence (breach of duty) and proximate causation posed to the jury or trier of fact. [Citation.]” (Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1273 [cleaned up].) Stated differently, “a court's task—in determining ‘duty’—is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1620 [quoting Ballard v. Uribe (1986) 41 Cal.3d 564, 573, fn. 6].)

“‘Breach of duty is usually a fact issue for the jury; if the circumstances permit a reasonable doubt whether the defendant’s conduct violates the standard of due care, the doubt must be resolved by the jury as an issue of fact rather than of law by the court. [Citation.]’ [Citations.]” (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207 (“Constance”).) “Similarly, ‘… the decision whether that breach caused the damage (that is, causation in fact) is again within the jury’s domain; but where reasonable men will not dispute the absence of causality, the court may take the decision from the jury and treat the question as one of law. [Citations.]’ [Citations.]” (Constance, supra, 178 Cal.App.3d at p. 207 [italics in original].)

As an initial matter, ARDI argues that it is not properly in the case as a Doe defendant because the FAC did not check the box for Doe defendants on page 1. The Court notes that this argument is essentially a motion for judgment on the pleadings, which was not sufficiently described in ARDI’s notice of motion. Nonetheless, the FAC does allege Doe defendants on page 2. Defendant does not address the allegations in paragraph 6. Accordingly, the Court denies the motion for judgment on the pleadings.

ARDI’s motion for summary judgment argues that Plaintiff cannot produce evidence showing it was foreseeable that the purported alarm would cause Plaintiff’s injury or that the alarm in fact caused the injury. Most of the facts in ARDI’s Separate Statement deal with the procedural history of the case and purported defects in the pleading.

- Plaintiff was allegedly injured on October 20, 2018 when he fell from a piece of playground equipment at the Westfield Fashion Mall, Los Angeles, California. Plaintiff claims that, shortly before his fall, a smoke alarm at ARDI’s food court restaurant was triggered. Plaintiff asserts that the triggering of the smoke alarm somehow caused the accident at issue, and that ARDI should accordingly be held responsible for Plaintiff’s damages. (UMF 1.)

- On May 18, 2021, SOFA filed a Cross-Complaint against ARDI alleging that the alarm of which Plaintiff complained was a false alarm emanating from a smoke detector contained within the premises leased and operated by ARDI. (UMF 10.)

- Plaintiff’s uncle, Raffi Agopian was the only witness to Plaintiff’s fall. (UMF 14.)

- During the time leading up to the fall, Plaintiff was playing on a piece of playground equipment that his uncle described as “a slide or something.” Plaintiff was still using this piece of equipment when the alarm went off. (UMF 15.)

- Raffi Agopian did not see Plaintiff start to fall. He only saw Plaintiff land. There was another, larger, child standing next to Plaintiff on the play equipment when he fell. (UMF 16.)

- Raffi Agopian believes that Plaintiff fell due to the smoke alarm because Plaintiff had not fallen on that specific play equipment during earlier visits. (UMF 17.)

Here, ARDI has not met its initial burden to demonstrate an absence of a triable issue of fact. In analyzing duty for purposes of summary judgment, the Court evaluates whether the category of allegedly negligent conduct at issue, i.e., the triggering of a false smoke alarm[1] near an indoor playground, is sufficiently likely to result in the kind of harm experienced, i.e., a commotion that leads to a fall. In considering the Rowland factors, the Court cannot find as a matter of law that ARDI owed no duty of care. ARDI cites to no case authority supporting its position.

Additionally, ARDI fails to meet its burden to show that there are no triable issues of fact regarding causation. ARDI’s only evidence in support of this motion is the deposition of Raffi Agopian, Plaintiff’s uncle, who purportedly witnessed the incident. Mr. Agopian testified that when the alarm sounded, “everybody was moving erratically, like bumping into each other.” (Sawyer Decl., Exh. A. Agopian Depo. 17:23–18:1.) When asked if he saw anyone bump into the equipment, Mr. Agopian stated:

“No. I thought either the 2 possibilities were either he fell or, like, he fell – I mean he’s either – I’ve seen him on the piece of equipment many times, and I don’t remember you know – he’s always done okay there. I’m assuming it was either the panicking, the loud noise that disrupted him, or maybe they bumped into each other, or I don’t know. I’m assuming. I’m not an expert. So I wouldn’t know.” (Agopian Depo. 18:15–23.)

He further testified that “[i]t was a commotion. I don’t know if [adults] were actually running, but people were – everybody’s movement seemed to be like, happening faster than usual.” (Id. 19:4-9.)

Here, based on the deposition testimony alone, ARDI does not set forth evidence showing the absence of a triable issue of fact. The Court cannot find as a matter of law that the evidence shows that the false alarm did not cause Plaintiff’s fall, considering all reasonable inferences in favor of the opposing party.[2]

Based on the foregoing, Defendant ARDI VIII International, LLC’s Motion for Summary Judgment is DENIED.

[1] Although ARDI argues that “Plaintiff has not put forward any theory, let alone any evidence, specifically explaining how ARDI’s conduct triggered the smoke alarm,” it is defendant’s initial burden on summary judgment to show the absence of a triable issue of fact. (Motion at p.7.) ARDI does not set forth facts showing that Plaintiff lacks evidence or cannot reasonably obtain it. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) In addition, ARDI argues in its reply that under Plaintiff’s theory, “it would be immaterial whether the alarm that sounded was a false alarm or a properly triggered alarm – it would have been the sounding of the alarm, and not the reason for the alarm, that matters.” (Reply at p. 3.) However, a false alarm resulting in panic or commotion for no valid reason is different from a properly triggered alarm that signals an emergency.

[2] Although ARDI argues there are “alternative causation possibilities unrelated to anything ARDI did or failed to do,” the function of the Court on summary judgment is not to weigh the evidence or otherwise sit as a trier of fact. (Motion at p. 9.)

DEPT:	32
HEARING DATE:	January 19, 2024
CASE NUMBER:	19STCV45568
MOTIONS:	Motion for Summary Judgment
MOVING PARTY:	Defendant ARDI VIII International, LLC dba Charley’s Grilled Subs
OPPOSING PARTY:	Plaintiff Sacha Agopian, by and through his GAL Christine Agopian