Judge: Craig Griffin, Case: "Cheragian vs. Starbucks, LLC", Date: 2022-10-31 Tentative Ruling

Defendants Starbucks Corporation (“Starbucks” individually) and South Coast Plaza’s (“SCP” individually; “Defendants” together with Starbucks) Motion for Summary Judgment, or in the alternative, for Summary Adjudication (“Motion”) at against plaintiff Mehrdokht Cheragian’s (“Plaintiff”) Complaint is GRANTED in part and DENIED in part.

SCP:

Granted as to all causes of action (“COA”).

Starbucks:

Granted as to COA Nos. 3-6 (Opposition, 2:16-18.)

Denied as to COA Nos. 1-2.

“[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. That is because of the general principle that a party who seeks a court's action in his favor bears the burden of persuasion thereon. (See Evid. Code, § 500.) 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. Atl. Richfield Co. (2001) 25 Cal. 4th 826, 850.)

“The motion for summary judgment shall be granted 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 a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.”  (Civ. Proc. Code § 437c(c).)

“(f)(1) A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.

(2) A motion for summary adjudication may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment. A party shall not move for summary judgment based on issues asserted in a prior motion for summary adjudicate

on and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.”  (Civ. Proc. Code § 437c(f).)

“For purposes of motions for summary judgment and summary adjudication:

. . .

(2) A defendant or cross-defendant has met his or her 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.”  (Civ. Proc. Code § 437c(p)(2).)

Defendants seek judgment/adjudication as to all six of Plaintiff’s COA.

To begin, Plaintiff has waived COA Nos. 3 through 6 as to both SCP and Starbucks.  (Opposition, 2:16-18.)  The Motion is GRANTED as to each of those COA due to waiver.  This leaves COA Nos. 1 and 2.

A)  COA No. 1 – Negligence

“The elements of a cause of action for negligence are well established. They are '(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.' ”  (Ladd v. Cty. of San Mateo (1996) 12 Cal. 4th 913, 917.)  “[T]he existence of a duty is a question of law for the court.”  (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal. 4th 814, 819.)

1)   SCP

“Historically, the public policy of this state generally has precluded a landlord's liability for injuries to his tenant or his tenant's invitees from a dangerous condition on the premises which comes into existence after the tenant has taken possession. This is true even though by the exercise of reasonable diligence the landlord might have discovered the condition.”  (Uccello v. Laudenslayer (1975) 44 Cal. App. 3d 504, 510.)  “The rationale for this rule has been that property law regards a lease as equivalent to a sale of the land for the term of the lease. (See comment (a) to Rest., Torts, s 355.) As stated by Prosser: [¶] ‘In the absence of agreement to the contrary, the lessor surrenders both possession and control of the land to the lessee, retaining only a reversionary interest; and he has no right even to enter without the permission of the lessee. Consequently, it is the general rule that he is under no obligation to anyone to look after the premises or keep them in repair, and is not responsible, either to persons injured on the land or to those outside of it, for conditions which develop or are created by the tenant after possession has been transferred. Neither is he responsible, in general, for the activities which the tenant carries on upon the land after such transfer, even when they create a nuisance.’ (Prosser, Law of Torts, p. 400 (4th ed.).) [¶] To this general rule of nonliability, the law has developed a number of exceptions, such as where the landlord covenants or volunteers to repair a defective condition on the premises [Citations], where the landlord has actual knowledge of defects which are unknown and not apparent to the tenant and he fails to disclose them to the tenant [Citation], where there is a nuisance existing on the property at the time the lease is made or renewed [Citations], when a safety law has been violated [Citations], or where the injury occurs on a part of the premises over which the landlord retains control, such as common hallways, stairs, elevators or roof [Citation]. [¶]  A common element in these exceptions is that either at or after the time possession is given to the tenant the landlord retains or acquires a recognizable degree of control over the dangerous condition with a concomitant right and power to obviate the condition and prevent the injury. In these situations, the law imposes on the landlord a duty to use ordinary care to eliminate the condition with resulting liability for injuries caused by his failure so to act.”  (Id., at 511.)

SCP has produced a declaration from SCP Dir. of Risk Management that the bathroom where the camera was located was under the possession, custody, and control of Macy’s at the time of (and predating) the incident.  (Rubenyan Decl. ¶¶ 5-7, 9.)  SCP does not inspect any of the tenant spaces for dangerous conditions, but it is the sole responsibility of each tenant to inspect the leased space.  (Rubenyan Decl. ¶ 8.)  Gunawan was never an employee/agent of SCP, nor did SCP take photographs/video of Plaintiff in the restroom, distribute any imagery of Plaintiff in the restroom, have knowledge of the hidden camera, or the power, opportunity, or ability to eliminate the hidden camera.  (Rubenyan Decl. ¶¶ 11-15.)  SCP has negated the element of ant legal duty of care owed by SCP to Plaintiff.  As SCP has shown there was no legal duty of care, SCP has also negated the breach element.  The burden transfers to Plaintiff to show a triable issue of material fact remains.

Plaintiff argues that SCP as a commercial landowner who owns and controls the South Coast Plaza shopping mall and leased spaces to Macy’s, is responsible for the premises.  (Plaintiff’s Additional Material Facts (“PAMF”) No. 1.)  In support, Plaintiff has produced a copy of a Ground Lease between SCP and Federated Dept. Stores, Inc. (“Federated”).  (Pla. Evid., Ex. 4 – “Lease”.) 

The Lease entered into by SCP and Federated was for a ground lease (“Lease”), not lease on a pre-existing building.  (Pla. Evid., Ex. 3 at p. 1.)  Federate was responsible for designing and constructing the building.  (Pla. Evid., Ex. 3 at pp. 2 § C and 18 § B.)  Title to the building and the improvements on the land remained solely with Federated.  (Pla. Evid., Ex. 3 at p. 23 § E.)  Federated was responsible for cleaning, maintenance, and repair of the store.  (Pla. Evid., Ex. 3 at p. 25a § G.)  Federated also had, “sole and undisturbed physical possession of the entire . . . premises.”  (Pla. Evid., Ex. 3 at p. 40 § B.)  The ground lease was entered into on 09/01/1972, and runs through 12/31/2062. (Pla. Evid., Ex. 3 at pp. 1 and 4 § 2.)  Thus, Federated/Macy’s had complete possession, custody, and control of the building under the terms of the lease, and not SCP. 

““Among the criteria for determining whether a landlord acted with ordinary care in the management of his property are: the likelihood of injury, the probable seriousness of such injury, the burden of reducing or avoiding the risk, and his degree of control over the risk-creating defect [citation].”  (Mora v. Baker Commodities, Inc. (1989) 210 Cal. App. 3d 771, 779.)   “In determining if there is a basis for tortious liability for conditions on land, California courts modernly “have placed major importance on the existence of possession and control” [Citations], because this factor is relevant in determining if the landlord acted reasonably under the circumstances. It would not be reasonable to charge a lessor with liability if the lessor did not have the power, opportunity and ability to eliminate the danger.”  [Emphasis added.]  (Id., at 779-80.)  “A landlord cannot be held to be responsible for all dangers inherent in a dangerous business. If the property or equipment necessary for the functioning of the property, such as a refrigeration system, was safe when transferred to the tenant, used in the manner for which it was intended and the lessor/owner has given up control of the property, the commercial landlord cannot be held responsible for accidents occurring after the property is transferred.”  (Id., at 780.)  “As the owner of property, a lessor out of possession must exercise due care and must act reasonably toward the tenant as well as to unknown third persons. [Citation.] At the time the lease is executed and upon renewal a landlord has a right to reenter the property, has control of the property, and must inspect the premises to make the premises reasonably safe from dangerous conditions. [Citations.] Even if the commercial landlord executes a contract which requires the tenant to maintain the property in a certain condition, the landlord is obligated at the time the lease is executed to take reasonable precautions to avoid unnecessary danger.”  [Emphasis added.]  (Id., at 781.) 

“[W]here a landlord has relinquished control of property to a tenant, a “bright line” rule has developed to moderate the landlord's duty of care owed to a third party injured on the property as compared with the tenant who enjoys possession and control. “ ‘Because a landlord has relinquished possessory interest in the land, his or her duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control. Thus, before liability may be thrust on a landlord for a third party's injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.’ [¶] Limiting a landlord's obligations releases it from needing to engage in potentially intrusive oversight of the property, thus permitting the tenant to enjoy its tenancy unmolested.”  (Salinas v. Martin (2008) 166 Cal. App. 4th 404, 412.)

The bathroom in question was apparently located within the Macy’s building, which, under the terms of the Lease provided as evidence by Plaintiff, SCP had no possession, custody, or control over.  Possession, custody, and control over the building appears to be with Federated/Macy’s under the terms of the Lease.  The Lease was entered into on 09/01/1972, well before the camera was alleged to have been placed in the bathroom and is set to end on 12/31/2062, well after the camera was discovered.  As there is no evidence the Lease was executed or renewed during the time the camera was in the bathroom, SCP would have had no obligation to enter the building to take precautions.  Plaintiff also did not suffer any injuries due to any issues with the land itself (i.e. tripping on a fallen tree, sinkhole, electrical wires), but rather was allegedly injured by a camera added to part of the building that was not in the possession, custody, or control of SCP.  Finally, Plaintiff has not presented any evidence SCP has actual knowledge of the hidden camera prior to it being found or the ability to cure the condition.  It is not reasonably foreseeable that an individual would place a hidden camera into a bathroom for purposes of recording third parties therein.

The other cases cited by Plaintiff finding liability on the part of a landlord involve instances where the landlord retained either possession, custody, and/or control over the dangerous property.  Again, under the terms of the Lease, SCP did not have ownership, possession, custody, or control of the building.  SCP was under no duty to inspect a building it did not build, own, have custody of, or control.  Even id SCP did have some sort of

Plaintiff has failed to show there are triable issues of material fact as to SCP’s possession, custody, and control of the bathroom in question and as such has failed to show triable issues of material fact as to elements of the negligence COA.

The Motion is GRANTED as to SCP on this COA. 

2)   Starbucks

“Franchising is a heavily regulated form of business in California, but there are relatively few decisions on the nature of the relationship between franchisor and franchisee as it affects third persons. (1) The general rule is where a franchise agreement gives the franchisor the right of complete or substantial control over the franchisee, an agency relationship exists.  [Citation.] “[I]t is the right to control the means and manner in which the result is achieved that is significant in determining whether a principal-agency relationship exists.” [Citation.]  “In the field of franchise agreements, the question of whether the franchisee is an independent contractor or an agent is ordinarily one of fact, depending on whether the franchisor exercises complete or substantial control over the franchisee. [Citations.]” [Citation.]  “Only when the essential facts are not in conflict will an agency determination be made as a matter of law.”  (Cislaw v. Southland Corp. (1992) 4 Cal. App. 4th 1284, 1288.)

The Licensing Agreement (“LA”) between Macy’s and Starbucks indicates Macy’s was responsible for constructing, opening, and operating the store.  (Opposition, Ex. 4 §§ C, 1.1, 2.1, 3.3, 5.1.) 

However, the LA also states Macy’s will, at Starbucks direction refurbish existing stores within the timeframe established by Starbucks and shall be without limitation to Starbucks right to require refurbishment.  (Opposition, Ex. 4 §§ 4.4.3 and 6.7.)  The LA permitted Starbucks to charge training fees for training staff (§ 5.6); required Macy’s to provide a floor plan and other information as requested (§§ 6.1.1 and 6.1.2); approval of the location from Starbucks (§§ 6.1.3 and 6.2); at Starbucks option it or its designee will prepare design drawings for each store or Macy’s will need to submit proposed designs with specifications and criteria provided by Starbucks for approval by Starbucks (§ 6.3.1); Macy’s must engage an architected or engineer approved by Starbucks and submit a copy of the completed construction documents to Starbucks (§ 6.3.1); engage a contractor and installer/suppliers approved by Starbucks (§ 6.4); Macy’s must maintain signage and products/supplies to Starbucks specifications (§§ 6.5 and 8.1); Macy’s must maintain each store in a degree of repair and condition consisted with the Macy’s and otherwise as directed by Starbucks (§ 6.6); Macy’s shall upgrade, update, and add fixtures, furnishings, and equipment as directed by Starbucks (§ 6.6); employees were to be trained in the Initial Store Training and/or Advanced Store Training programs to Starbucks satisfaction (§§ 7.1.1 and 7.1.2); Macy’s was required to maintain employee certifications required by Starbucks (§ 7.3);  Starbucks required a specific number of employees (§§ 7.2 and 9.5.1); Starbucks had discretion to approve or disapprove all supplier and supplies for the store (§ 8.2); Starbucks may establish and revise prices (§§ 8.3 and 9.4.3); Macy’s was required to operate the store within each and every standard of the Starbucks Manual, which Starbucks had the right to revise, update, and modify (§ 9.2); Macy’s was required to permit Starbucks to inspect the site and to determine conditions of the store and Macy’s compliance with the LA and make Macy’s take corrective action based upon any inspection (§ 9.3.2); Use point-of-sale hardware/software designated by Starbucks at Starbucks’ option(§ 9.3.5); Employees are required to follow Starbucks dress code (§ 9.5.2); Starbucks may close the store if there is a threat or danger to public health or safety created by the operation or condition of the store (§ 9.8).  There are multiple other requirements in the LA showing Starbucks had, or could assert at its discretion, control over varying aspects of the store.

Witness Shawn Fahey (“Fahey”), manager at the store, testified there were Starbucks District Managers that went to the store to answer staff questions, ensure training on promos/drinks and all stores were delivering the same customer experience, and follow up with the store if something was not being done to the Starbucks standard, and potentially handing out “Notices of Action” requiring changes to be made.  (Opposition, Ex. 6.)  Fahey also cleaned the bathroom on occasion and connected with the Macy’s operations manager to make sure the bathroom was regularly cleaned since it was highly used.  (Opposition, Ex. 6.) 

“The imposition and enforcement of a uniform marketing and operational plan cannot automatically saddle the franchisor with responsibility for employees of the franchisee who injure each other on the job. The contract-based operational division that otherwise exists between the franchisor and the franchisee would be violated by holding the franchisor accountable for misdeeds committed by employees who are under the direct supervision of the franchisee, and over whom the franchisor has no contractual or operational control. It follows that potential liability on the theories pled here requires that the franchisor exhibit the traditionally understood characteristics of an “employer” or “principal;” i.e., it has retained or assumed a general right of control over factors such as hiring, direction, supervision, discipline, discharge, and relevant day-to-day aspects of the workplace behavior of the franchisee's employees.”  [Emphasis original.] (Patterson v. Domino's Pizza, LLC (2014) 60 Cal. 4th 474, 478.)

Plaintiff has shown triable issues of material fact as to how much control Starbucks over the store and whether Starbucks control extended beyond that which is necessary to protect and maintain its trade mark, trade name and good will, and whether Starbucks controls covered day to day details of the store’s operation.  (Nichols v. Arthur Murray, Inc. (1967) 248 Cal. App. 2d 610, 613–14.)  There is a triable issue of agency and Starbucks’ potential liability to third parties (Plaintiff specifically) for the actions of defendant Gunawan who was an employee of the store.  There is also an issue of material fact as to whether Starbucks substantial enough control over the store to make it liable for Plaintiff’s injuries even though Macy’s was in possession of the store and not Starbucks.  Starbucks was able to enter the store an issue warnings to fix thing, close it down for “danger to public health and safety,” and regulate multiple aspects of the store’s business.  Training the store employees on safety related to the bathroom may or may not have been the responsibility of Starbucks.  Though again, it is not necessarily reasonably foreseeable that an individual would place a hidden camera into a bathroom for purposes of recording third parties therein, given the number of Starbucks stores and franchisees, there is an issue of material fact as to whether Starbucks has come across similar situations in the past that they may/should train store employees on in order to protect third parties entering into stores.  There are enough issues of material fact regarding Starbucks’ control over the store and its employees in regard to direction, supervision, discipline, and relevant day-to-day aspects of the store’s workplace behavior to support denying the Motion at this time.

The Motion is DENIED as to Starbucks on this COA.

B)  COA No. 2 – Premises Liability

“The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.  A failure to fulfill this duty is negligence.”  (Brooks v. Eugene Burger Mgmt. Corp. (1989) 215 Cal. App. 3d 1611, 1619.)  “The determination that a [] defendant owed the plaintiff no duty of care is a complete defense to a cause of action for negligence.”  (Id., at 1619–20.)  “A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.”  (Alcaraz, supra, 14 Cal. 4th at 1162.)

1)   SCP

“[B]efore liability may be thrust on a landlord for a third party's injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.”  (Salinas v. Martin (2008) 166 Cal.App.4th 404, 412.)

As noted in the negligence section, supra, the Lease entered into by SCP and Federated was for a ground lease, not lease on a pre-existing building.  (Pla. Evid., Ex. 3 at p. 1.)  Federate was responsible for designing and constructing the building.  (Pla. Evid., Ex. 3 at pp. 2 § C and 18 § B.)  Title to the building and the improvements on the land remained solely with Federated.  (Pla. Evid., Ex. 3 at p. 23 § E.)  Federated was responsible for cleaning, maintenance, and repair of the store.  (Pla. Evid., Ex. 3 at p. 25a § G.)  Federated also had, “sole and undisturbed physical possession of the entire . . . premises.”  (Pla. Evid., Ex. 3 at p. 40 § B.)  Thus, Federated/Macy’s had complete possession, custody, and control of the building under the terms of the lease, and not SCP. 

SCP met its initial burden of showing it did not possess, have custody of, and/or control of the building.  Plaintiff has failed to show SCP had actual knowledge of the camera in the bathroom, or that SCP had the right and ability to cure the condition as the Lease provided by Plaintiff specifically puts those responsibilities on Federated/Macy’s.

The Motion is GRANTED as to SCP on this COA. 

2)   Starbucks

Similar to the negligence COA, supra, there are triable issues of material fact as to how much control Starbucks exerted over the store and whether that control extended beyond that which is necessary to protect and maintain its trade mark, trade name and good will.  (Nichols, supra, 248 Cal. App. 2d at 613–14.)  Starbucks did not need to own or possess the store, only to exert a sufficient amount of control over the store in order to be liable for Plaintiff’s alleged injuries. (Alcaraz, supra, 14 Cal. 4th at 1162.)

The Motion is DENIED as to Starbucks on this COA.

C)   Objections

Plaintiff’s Objections to Jones Decl.:

Overruled as to Nos. 1 through 7 – Jones made the declaration with her personal knowledge and as Dist. Manager – Licensed Stores for Starbucks Corporation, she would have access to that information.  Jones also testified as the Person Most Qualified on behalf of Starbucks (Pla. Evidence, Ex. 1.)

Plaintiff’s Objections to Rubenyan Decl.:

Sustained as to Nos.:

-           3 – Portion stating, “owned and operated by Macy's pursuant to a Master Licensing Agreement with Starbucks Corporation.” – There is no foundation for Rubenyan, who is an employee of SCP, to have this information;

-          4 – There is no foundation for Rubenyan, who is an employee of SCP, to have this information.

Overruled as to Nos.:

-          1 – Declaration states within declarant’s knowledge and position as Dir. of Risk Management for SCP;

-          2 – Declaration states within declarant’s knowledge and position as Dir. of Risk Management for SCP;

-          3 – Portion stating, “The restroom where Defendant Gunawan installed a hidden camera in April 2019 was located within a Starbucks which was entirely within the Macy's Main Store” – Rubenyan would have this knowledge based on employment position;

-          5 – Knowledge based on position within SCP;

-          6 – As Dir. of Risk Management for SCP, Rubenyan should have personal knowledge as to SCP’s ability to mitigate similar risks in the specific restroom.

Plaintiff’s Objections to Lenkov Reply Decl.:

Sustained in part and overruled in part.

Gunwan Decl. (Lenkov Reply Decl., Ex. D) – Sustained as to pages 49, 53, and 54; Overruled as to the rest.  Plaintiff in her opposition entered the deposition testimony of Gunwan, but omitted pages 49, 53, 54.  (Pla. Evidence, Ex. 2.)  Defendants are permitted to address the evidence Plaintiff has herself admitted.  The additional pages are new evidence improperly submitted in a reply brief that Plaintiff has not had the opportunity to respond to.  (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal. App. 4th 308, 316.)

Jones Decl. (Lenkov Reply Decl., Ex. E) – Overruled.  Defendants only entered page 27 of the deposition, which Plaintiff previously entered in support of her opposition.  (Pla. Evidence, Ex. 1.)  Defendants are free to address evidence Plaintiff has herself entered.

Fahey Decl. (Lenkov Reply Decl., Ex. F) – Sustained as to pages 49, 56, 72-73, 91-92, 101-102, 106, and 188; Overruled as to the rest.  Plaintiff in her opposition entered the deposition testimony of Fahey, but omitted pages 49, 56, 72-73, 91-92, 101-102, 106, and 188.  (Pla. Evidence, Ex. 2.)  Defendants are permitted to address the evidence Plaintiff has herself admitted.  The additional pages are new evidence improperly submitted in a reply brief that Plaintiff has not had the opportunity to respond to.  (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal. App. 4th 308, 316.)

Defendants to give notice.