Judge Audra Mori, Case BC709831 2022-08-05 Tentative Ruling

Plaintiff Fadi Ellahib (“Plaintiff”), a minor by and through his guardian ad litem, Hatoum Ellahib, filed this action against Defendants Erik James Wanland (“Wanland”), the State of California, and the Islamic Center of Claremont (“the Center”) for damages arising out of an automobile accident vs. pedestrian accident that occurred on June 27, 2016.

As it relates to the Center, Plaintiff’s First Amended Complaint (“FAC”) alleges that on the date of the incident, the Center invited members, their families, and their minor children to its property for services and activities. The Center’s play area included a children’s play area, and its property was enclosed by a fence that included gates for egress and ingress to the property by vehicles and pedestrians. Plaintiff asserts that the Center knew or should have known that some children would engage in various activities on the playground, and that once outside, children might leave the property through the gates if left open and unsupervised. Further, Plaintiff alleges that the Center had a duty to supervise, monitor, and control the gates, and that it breached this duty by failing to keep its doors and gates closed and by failing to prevent minors from leaving its property without supervision or permission. Plaintiff alleges that because of the Center’s negligence, Plaintiff, who was ten years old at the time, was allowed to leave the property and exit through an open, unguarded, and unprotected date. Plaintiff crossed the street to reach a store on the other side and was struck by a vehicle driven by Wanland. The FAC asserts causes of action for negligence and premises liability against the Center.

At this time, the Center moves for summary judgment as to claims against it. Plaintiff opposes the motion, and the Center filed a reply.[1]

The Center argues it is entitled to summary judgment because it did not own or control the area where Plaintiff was injured, and it did not hold itself out as a sanctuary where persons could leave their children unattended to be watched by the Center’s personnel. The Center contends that it did not owe a duty of care to Plaintiff to protect him from injury after leaving the Center’s property. The Center contends that there were many children on its property, as the incident happened during a Ramadan celebration, and no one was in charge of keeping them on the property, other than their parents. Further, the Center asserts that it was not required to keep children from wandering off its property, and that Plaintiff intentionally left the property with the intent of going to a store to buy an Icee.

Plaintiff argues that the Center had a duty to use reasonable efforts to prevent children from leaving its property while unsupervised at night. Plaintiff argues that the Center solicited members and their children to come to its property for various occasions, including Ramadan, and that the Center knew that (1) invited adults commonly came to the Center with children of the opposite gender, (2) children in the range of eight to ten years old were disallowed or discouraged from praying with an adult of the opposite gender, (3) the Center expressly undertook the duty to keep children safe while on its property, (4) that children often left the premises and crossed the intersection to a store that sold goods attractive to children, (5) that it was dangerous for children to leave the property while unsupervised at night, and that (6) the Center did not try to prevent children from leaving its property, although it had the opportunity to do so at minimal inconvenience. Plaintiff asserts that at the time of the incident, he was ten years old and was at the Center with his aunt, and that while she was in the women’s prayer area, Plaintiff left the property though the main gate; Plaintiff was struck by a car while crossing the intersection to return to the Center after going to the store. Plaintiff argues there are triable issues of fact as to whether the Center had a duty of care to prevent Plaintiff from leaving the property.

The Center requests the court take judicial notice of the Traffic Collision Report prepared by the Pomona Police Department as to the location where Plaintiff was found in the street and the date of the accident. The request is denied as the Center fails to establish it is proper to take judicial notice of purported facts in a Traffic Collision Report. (See Vehicle Code § 20013 [“No such accident report shall be used as evidence in any trial, civil or criminal, arising out of an accident….”]; see also People v. Jones (1997) 15 Cal.4th 119, 171, fn. 17 [“we decline to take judicial notice of the truth or accuracy of an entry in a police report, because such a report is reasonably subject to dispute”] disapproved on another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1; Petricka v. Department of Motor Vehicles (2001) 89 Cal.App.4th 1341, 1345, fn. 1 [“it would have been improper for the court to take judicial notice of the police report…”].) Further, the report is not authenticated by the Center’s counsel or any person’s declaration attached to the moving papers.

Plaintiff, in opposition, submits ten objections to the declaration of Basem Aweinat (“Aweinat”) attached to the motion and Attachments 1 and 2 to the declaration. Objections 1-10 are overruled.[2]

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

As in any negligence action, whether a duty was owed under the facts is a question of law for the court. (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.) In evaluating the threshold legal question of duty, the court must (i) determine the specific measures the plaintiff asserts the defendant should have taken to prevent the harm, (ii) analyze how financially and socially burdensome the proposed measures would be to the defendant, (iii) identify the nature of the third party conduct that the plaintiff claims could have been prevented had the defendant taken the proposed measures, and (iv) assess how foreseeable (on a continuum from a mere possibility to a reasonable probability) it was that this conduct would occur. (See Id. at 1214.) “Courts ... invoke[ ] the concept of duty to limit generally the otherwise potentially infinite liability which would follow from every negligent act....” (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083, internal quotations omitted.) “The determination that a defendant owed the plaintiff no duty of care is a complete defense to a cause of action for negligence. [Citation].” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1620 [apartment owner had no duty to erect fence to protect children from walking into street adjacent to apartment].)

Concerning those who own, control, or possess property, “[t]he courts ... have consistently refused to recognize a duty to persons injured in adjacent streets or parking lots over which the defendant does not have the right of possession, management and control.” (Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, 489, quoting Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 386; see also Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799, 805-06, [supermarket owed no duty to customer who was hit by a car in an adjacent public street while crossing the street to get to the store's grand opening].) “Generally, absent statutory authority to the contrary, a landowner is under no duty to maintain in a safe condition a public street or sidewalk abutting upon his property ... or to warn travelers of a dangerous condition not created by him but known to him and not to them....” (Seaber, 1 Cal.App.4th at pp. 487-88; see also Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1084 [landowner is under no duty to maintain in a safe condition a public street abutting the landowner’s property unless the landowner created the danger].) “The reason for this rule is that a landowner generally has no right to control another's property, including streets owned and maintained by the government.” (Vasilenko, 3 Cal.5th at 1084.)

In cases involving minor plaintiffs, it is recognized that the degree of care to be exercised toward children is greater than that required toward adults who possess normal and mature faculties, so a greater degree of care is owed by the owner or possessor of property to children than to adults on the premises. (Schwartz v. Helms Bakery Limited (1967) 67 Cal.2d 232, 238-39.) A landowner owes a greater degree of care to children because of their lack of capacity to appreciate risks and to avoid danger. (McDaniel v. Sunset Manor Co., 220 Cal. App. 3d 1, 7.) Further, “[a] landowner similarly shares that duty to ‘protect the young and heedless from themselves and guard them against perils that reasonably could have been foreseen.’ [Citation].” (Id.) Nonetheless, even where children are involved, the owner or possessor is not an insurer of their safety but is liable only for an act or omission that is unreasonable under the particular circumstances. (Crane v. Smith (1943) 23 Cal.2d 288, 298.)

Here, the subject accident occurred on June 27, 2016, which was during the last ten days of Ramadan when there is an increase of attendees at the Center; the Center has approximately 300 worshippers for the last ten days of Ramadan, which including June 27, 2016. (UMF 3-5, 7.) On the date of the accident, Plaintiff, his brother, and his mother entered the Center through the main gate; Plaintiff’s mother did not observe any guards on duty at the main entrance and had never seen someone posted there prior. (UMF 17-18.) To the left of the main entrance, there are two wrought iron fences, each with a gate. (UMF 23.) Upon arriving, Plaintiff’s mother observed Plaintiff walk toward and enter the property’s basketball area, which Plaintiff’s mother refers to as the playground area; Plaintiff’s mother did not see any guards at the wrought iron gate to the basketball area when Plaintiff went in there. (UMF 24, 26.) Usually, when worshippers are present, the gates remain open but can be closed at will; when Plaintiff, his brother and mother arrived, the gate to the basketball area was open. (UMF 27-28.) It was dark when Plaintiff and his family left their house and when they arrived at the Center. (UMF 30.)

After Plaintiff’s mother saw Plaintiff go into the basketball area, Plaintiff’s mother stood in the parking lot area talking to her sister for five to ten minutes. (UMF 32.) Before Plaintiff went to play, Plaintiff’s mother told him not to go outside because she knew half of the kids would go outside the Center. (UMF 33.) Plaintiff’s mother then went to sit in front of the women’s prayer area and returned to check on her children one to two times. (UMF 35-36.) Afterwards, Plaintiff’s mother took Plaintiff’s brother home, and before leaving, Plaintiff’s mother asked her sister/Plaintiff’s aunt to watch Plaintiff. (37-38.) After Plaintiff’s mother left, Plaintiff’s aunt never checked on Plaintiff; Plaintiff went to a gas station to get an Icee. (UMF 40-41.) Plaintiff did not tell his aunt that he was leaving the Center, nor did he ask for permission. (UMF 43.) It was common for kids to leave to the Center to go the store at the gas station, with and without parents, and there were never babysitters or attendants at the Center watching over the kids on the playground or basketball courts for kids Plaintiff’s age. (UMF 45-46.) The Center provides childcare for children up to approximately six years of age, but it asserts that once a child reaches seven years old, it is anticipated that the child will accompany his or her parents to prayer services. (UMF 47.)

Additionally, during large events, the Center hires an attendant to control traffic at the main entrance to keep persons safe on the property; the attendant’s job is to make sure that worshippers on the property are safe from vehicular traffic coming onto the property. (UMF 49, 51.) The attendant is not charged with the responsibility of keeping track of who has left the property and with whom. (UMF 52.) Plaintiff knew he was forbidden from crossing the street without an adult, and Plaintiff was seen crossing the street alone to go to the gas station store. (UMF 54-55.) Plaintiff was then struck by a car while crossing back in the other direction. (UMF 56-57.)

The Center primarily cites to Nevarez v. Thriftimart, Inc. (1970) 7 Cal.App.3d 799 (“Nevarez”), and Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611 (“Brooks”) in arguing that it thus did not owe Plaintiff a duty to keep him on the property. The Center contends there was no one in charge of keep children on the property, and that there is no requirement that a religious institution keep children from wandering off its premises.

In Nevarez, a three-year-old child lived across the street from a store that had arranged for various carnival rides as part of a grand opening. (7 Cal.App.3d at 802-03.) The child had gone to the grand opening that morning with his family, came home, and then was struck by a car as he attempted to cross the street while headed back in the direction of the grand opening. More specifically, plaintiff “had come home and gone inside the house for lunch approximately 10-15 minutes before the accident occurred. No one saw plaintiff leave the house. Plaintiff had run between two of the cars parked on the north curbing and into the street where he was struck by the automobile.” The appellate court found that the store had no liability because it had no power to control public streets, as such control lies with the proper governmental authorities and not with the occupier of adjacent land. (Id. at 805.) The store did not invite children to do business in a particular part of the street or to approach its attractions over any route, and it had no control over the neighboring streets or vehicles using them. (Id. at 806.)

In Brooks, a child was struck by a vehicle after walking into a street in front of an apartment complex; the child brought an action against the apartment complex owner asserting a premises liability cause of action contending there was a substantial number of children on the premises but the premises lacked adequate fencing or other structural confinement. (215 Cal.App.3d at 1615.) “[D]efendant did not contest the factual allegations of the complaint, i.e., did not contest that the apartment complex was owned by the defendant, that it fronted on a busy road, that it was not fenced, that a substantial number of children lived there, nor that [the child] was injured as a result of walking off the sidewalk onto the street.” (Id. at 1621.) Nonetheless, “the danger existed not on defendant’s premises but, rather, on the adjacent [street].” (Id. at 1624.) “There exists no statute, rule or ordinance that requires the building of a fence or barrier on defendant's premises. Plaintiff has cited no precedent or authority holding that a landlord has a duty to fence his premises to keep young children inside. Nor does the owner or possessor of land owe such a duty at common law.” (Id.) The apartment owner, thus, owed no duty to the child to provide fencing or some other means of confinement to the premises. (Id.)

However, as Plaintiff argues, Nevarez and Brooks are distinguishable from the allegations at issue here. Neither Nevarez or Brooks involved claims that the defendant landowners created an appearance of safety by offering a sport court or play area enclosed by a fence but negligently maintained and supervised the gates in the fence as Plaintiff alleges in this case. (See Barnes v. Black (1999) 71 Cal.App.4th 1473, 1479 [noting that the plaintiff in Brooks “did not allege the configuration of the defendant's property … affirmatively caused the child to enter the street” in rejecting argument that landlord owed no duty of care to protect tenants from unreasonable risk of injury on public street off of the premises].) Plaintiff further provides evidence showing that the Center was aware that children, who might not appreciate the danger of a public street, would leave the Center’s property without adult supervision, and that it was unsafe for children to do so. (See McDaniel v. Sunset Manor Co., 220 Cal. App. 3d 1, 7; Opp. Pl.’s AUMF 46-51.) There is also evidence that the Center undertook some effort to supervise the gate, as Plaintiff’s mother testified that she saw an employee of the Center’s standing at the gate watching children at some point on the date of the incident. (Opp. Pl.’s AUMF 23-25.) The Center, in reply, did not respond to or deny Plaintiff’s additional undisputed material facts submitted with his opposition, and the Center does not cite any authority holding that under these alleged facts, it did not owe a duty to Plaintiff.

Nevarez and Brooks did not hold that a landowner is immune from liability as a matter of law for injuries that occur off of the owner’s property. Although the general rule is that adjacent property owners do not have a duty to erect signs for the purpose of controlling or regulating traffic on adjacent public roads (See Seaber, 1 Cal.App.4th at 487-88; see also Nevarez, 7 Cal.App.3d at 803), Defendant does not otherwise provide any authority or evidence showing that Plaintiff cannot establish an exception to the general rule. (See e.g., Carson v. Facilities Dev. Co. (1984) 36 Cal.3d 830, 846-48 [A landowner may be liable where it creates a dangerous condition on its own property that proximately causes an accident off the property, such as a sign or landscaping that obstructs the view of a roadway], and Barnes, supra, 71 Cal.App.4th at 1478 [“[Landlord] owes its tenants a duty of care to avoid exposing children playing on the premises to an unreasonable risk of injury on a busy street off the premises…”]; accord. Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 511-12 [school district may be held liable when as a result of the school’s negligent supervision, a student leaves the school grounds during school hours and is injured by a motorist].) Additionally, the Center fails to cite to any evidence, or assert in its separate statement, that it did not exert any control over the location of the accident. (Seaber, 1 Cal.App.4th at 489.) Similarly, the Center offers no argument or evidence negating the allegations that its alleged negligent supervision of the children on its property, including Plaintiff, contributed to the accident.

The Center does not otherwise provide any basis for finding, or cite any authority showing, that it did not owe a duty to Plaintiff as a matter of law. For example, the Center does not address any of the factors discussed in Castaneda v. Olsher (2007) 41 Cal.4th 1205, such as how foreseeable the incident was, in asserting it owed no duty to Plaintiff. (See Vasilenko, 3 Cal.5th at 1083.)[3] Because there is no argument or evidence concerning these factors, the court cannot weigh the factors to determine whether a duty was owed.

Based on the foregoing, the Center fails to meet its moving burden to show that it did not owe any duty to Plaintiff as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [“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.”].)

[1] Both the Center’s motion and Plaintiff’s opposition fail to comply with California Rules of Court, Rule 3.1350(d), (e), as neither the Center’s nor Plaintiff’s papers contain separately filed memoranda of points and authorities and evidence as required. Additionally, despite the Center’s memorandum being 80 pages and Plaintiff’s opposition brief containing over 200 pages, neither party electronically tabbed the exhibits to assist in the court’s review of the briefs and evidence. The court has discretion to disregard moving or opposing papers that are procedurally defective and has grounds to deny the motion on that basis alone. However, the court will also analyze the issues presented in the motion. The Center’s and Plaintiff’s counsel are advised that failure to comply with all applicable Rules of Court in the future may result in the court taking matters off calendar or disregarding papers.

[2] The court notes Aweinat’s declaration refers to the attachments to the declaration as Exhibit A and B; however, the attachments are actually labeled as Attachment 1 and 2. Thus, while the Center seemingly mislabeled the Attachments, it clear that Aweinat’s declaration is referring to this evidence, and that Plaintiff understood this to be the case.

[3] In determining whether policy considerations weigh in favor of find that a duty is owed, the court considers the Rowland factors and looks to “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, 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, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” (Vasilenko, 3 Cal.5th at 1083, citing Rowland v. Christian (1968) 69 Cal.2d 108, 113.)