Judge Daniel M. Crowley, Case Number: 20STCV00965, Date: 2023-06-20 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff via the Department's email: SMCdept71@lacourt.org before the set hearing time. See, e.g., CRC Rule 324(b). All parties are otherwise encouraged to appear by LACourtConnect for all matters.

Defendant BMW Nationwide Security, Inc.’s motion in the alternative for summary adjudication against Plaintiff’s complaint is denied as to Issue Nos. 1 and 2.

Defendant BMW Nationwide Security, Inc. (“BMW”) (“Defendant”) moves for summary adjudication of Plaintiff Edna Herrarte-Giron’s (“Herrarte-Giron”) (“Plaintiff”) complaint (“Complaint”) on the basis BMW did not have a duty to Plaintiff, BMW is protected under the special employee relationship, BMW had no notice of a dangerous condition, and BMW’s actions were not the proximate cause of Plaintiff’s injury. (Notice of Motion, pgs. 1-2; C.C.P. §437c.)

In the alternative, BMW moves for summary adjudication on the following issues: (1) the premises liability cause of action (2nd COA) is not applicable to BMW as the issue of ownership, possession, and control of the premises has been proven as a matter of law and BMW is entitled to judgement on this cause of action because the premises where the alleged incident took place was not owned, controlled, maintained, or in the possession of BMW [Issue No. 1]; and (2) the issue of a special relationship between BMW and Defendant Staff Pro Inc. (“Staff Pro”) (“Defendant”) has been proven as a matter of law, specifically, because Staff Pro retained exclusive control over the borrowed Guards, including Jesus Aceves [Issue No. 2]. (Notice of Motion, pgs. 2-3; C.C.P. §437c(f).)

BMW’s 8/24/23 evidentiary objections to Plaintiff’s evidence are overruled as to Nos. 1, 2, 3, 4 (only as to Exh. 1, Plaintiff’s Depo 180:4-8), 5, 6, 7, and 8; and sustained as to No. 4 (only as to Exh. 1 Plaintiff’s Depo 164:20-165:21).

BMW’s 8/24/23 evidentiary objections to Staff Pro’s evidence are overruled a to Nos. 1, 2, 3, 4, and 5.

BMW’s 8/24/23 evidentiary objections to Goldenvoice’s evidence are overruled as to Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12.

On January 8, 2020, Plaintiff Edna Herrarte-Giron (“Herrarte-Giron”) (“Plaintiff”) filed her personal injury complaint in the instant action against Defendants Staff Pro, Al Malaikah Auditorium Company (“Al Malaikah”), and Goldenvoice LLC (“Goldenvoice”) (collectively, “Defendants”) alleging two causes of action: (1) negligence; and (2) premises liability, arising from an incident on February 8, 2019, during which Plaintiff tripped and fell at the Shrine Auditorium, suffering injuries to her right foot (“Incident”). (See Complaint.) The causes of action are based on allegations that Defendants negligently maintained the premises by failing to properly inspect and/or manage the premises in order to prevent injury to visitors.

On February 26, 2020, Staff Pro filed its initial cross-complaint against Al Malaikah, Goldenvoice, and BMW. On October 8, 2021, Staff Pro filed its operative first amended cross-complaint against Al Malaikah, Goldenvoice, and BMW for three causes of action: (1) equitable indemnity [against all Cross-Defendants]; (2) declaratory relief [against all Cross-Defendants]; and (3) express contractual indemnity [against Cross-Defendant BMW]. On July 13, 2023, this Court granted BMW’s motion for summary adjudication of Staff Pros’ first initial cross complaint only on the issue that BMW owes Staff Pro a duty of defense regarding Plaintiff’s Complaint. (7/13/23 Minute Order, pg. 7.)

BMW filed the instant motion on June 13, 2023. Plaintiff filed her opposition on August 10, 2023. Staff Pro filed its opposition on August 15, 2023. Goldenvoice and Al Malaikah filed their opposition on August 15, 2023. BMW filed its replies to Plaintiff, Staff Pro, and Goldenvoice and Al Malaikah on August 24, 2023.

A 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. (C.C.P. §437c(c).)

A party moving for summary adjudication of a cause of action must show that no material issues of fact remain as to each element of that cause of action. (C.C.P. §437c(p)(l).) A party moving for summary adjudication must completely dispose of the particular issue of duty. (C.C.P. §437c(f)(l); Linden Partners v. Wilshire Linden Association (1998) 62 Cal.App.4th 508, 519, 521-522.)

A cause of action for negligence requires the following elements: (1) legal duty owed to plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318; Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994 [focusing on duty to avoid causing unreasonable risk of injury in Civil Code §1714].)

“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.” (Civ. Code §1714(a); see Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764, 771 [“The general rule in California is that ‘[e]veryone is responsible . . . for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person.’”].)

Employers are held vicariously liable for the torts of their employees. (See, e.g., Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296-297 [“The rule of respondeat superior is familiar and simply stated: an employer is vicariously liable for the torts of its employees committed within the scope of the employment.”].)

BMW argues it did not owe a duty to Plaintiff because its duties prohibited its employees from ushering and illuminating Plaintiff’s path. BMW submitted evidence that upon arriving at Opera Box H, Plaintiff spoke with Jesus Aceves (“Aceves”), who was stationed exclusively as a crew member, and not an usher, at the entrance curtain. (BMW’s Disputed Separate Statement of Fact [“BMW-DSSF”] 48; BMW-COE, Exh. B at 65:22-66:1, 67:3-68:8, 75:18-76:3; Exh. C at 68:10-14.) BMW failed to submit evidence that it did not owe Plaintiff a duty to use ordinary care.

Assuming, arguendo, BMW met its burden to submit evidence that it did not owe Plaintiff a duty to use ordinary care, Staff Pro met its burden to raise an issue of material fact as to whether Aceves owed Plaintiff a duty to use ordinary care. Specifically, Staff Pro submitted evidence that Aceves had a duty to use ordinary care in illuminating Plaintiff’s path arising from Aceves’ special relationship with Plaintiff. Staff Pro submitted evidence that Aceves had special training with respect to safety and event services. (Staff Pro’s Additional Material Facts [“SP-AMF”] 1.) Staff Pro submitted evidence that Aceves was trained as a guard by BMW and certified with a guard care. (Staff Pro’s Undisputed Material Facts [“SP-USSF”] 21.) Staff Pro submitted evidence that Aceves was instructed by his supervisor to use his flashlight to “guide [patrons] to their seat on the floor so [patrons] won’t . . . miss a step.” (SP-AMF 4.) Staff Pro met its burden to raise a triable issue of material fact as to whether BMW owed Plaintiff a duty of ordinary care.

“When a[] . . . ‘general’ employer lends an employee to another employer and relinquishes to a borrowing employer all right of control over the employee’s activities, a ‘special employment’ relationship arises between the borrowing employer and the employee. During this period of transferred control, the special employer becomes solely liable under the doctrine of respondeat superior for the employee’s job-related torts.” (Marsh v. Tilley Steel Co. (1980) 26 Cal.3d 486, 492, citing Welborn v. Dalzell Rigging Co. (1960) 181 Cal.App.2d 268, 275, and Doty v. Lacey (1952) 114 Cal.App.2d 73, 78.)

“The special employment relationship and its consequent imposition of liability upon the special employer flows from the borrower’s power to supervise the details of the employee’s work. Mere instruction by the borrower on the result to be achieved will not suffice. Moreover, California courts have held that evidence of the following circumstances tend to negate the existence of a special employment: The employee is (1) not paid by and cannot be discharged by the borrower, (2) a skilled worker with substantial control over operational details, (3) not engaged in the borrower’s usual business, (4) employed for only a brief period of time, and (5) using tools and equipment furnished by the lending employer.” (Id., citing Kowalski v. Shell Oil Co. (1979) 23 Cal.3d 168, 176-177, and McFarland v. Voorheis-Trindle Co. (1959) 52 Cal.2d 698, 705, 343 P.2d 923.)

BMW argues that it was absolved of respondeat superior liability when it relinquished all control to Staff Pro, with whom it had a “special employment relationship.” BMW submitted evidence that it had no authority, control, or supervision over the guards once they arrived at the Shrine Auditorium. (BMW-DSSF 36; BMW-COE, Exh. C at 25:6-12, 19-23; Exh. D at 27:13-18, 29:19-21, 80:24-25, 81:1-4, 83:25-84:5, 120:5-19, 121:1-3; Exh. F; Exh. G.) BMW submitted evidence that Staff Pro’s PMK conceded the BMW guards were under the direct control and supervision of Staff Pro and were required to wear Staff Pro uniforms. (BMW-DSSF 37; D-COE, Exh. C at 25:6-12, 25:19-23.) BMW submitted evidence that Aceves’ direct supervisor on the night of the Incident was Kendra McDonald, a dedicated Staff Pro employee. (BMW-USSF 43.) BMW met its burden to demonstrate it had a special employment relationship with Staff Pro that absolved BMW of respondeat superior liability, shifting the burden to an opposing party to raise a triable issue of material fact as to whether BMW had a special employment relationship with Staff Pro.

Staff Pro met its burden on raise a triable issue of material fact as to whether BMW had a special employment relationship with Staff Pro. Specifically, Staff Pro submitted evidence that Aceves admitted BMW paid him for his work on the night of the Incident. (SP-AMF 2.) Staff Pro submitted evidence that Aceves was under Staff Pro’s alleged control for only a brief time—the night of the incident. (SP-AMF 2.) Staff Pro submitted evidence that under BMW’s and Staff Pro’s Service Agreement, BMW was to supply its guards with tools to perform their duties, including flashlights. (SP-AMF 1.) Staff Pro met its burden on raise a triable issue of material fact as to whether BMW had a special employment relationship with Staff Pro.

Staff Pro further submitted evidence raising a triable issue of material fact as to whether Aceves breached his duty to illuminate Plaintiff’s path and caused Plaintiff’s fall. Specifically, Staff Pro submitted evidence of Plaintiff’s testimony that Aceves did not illuminate her path, which resulted in her fall. (SP-AMF 6.)

A cause of action for premises liability requires the following elements: (1) defendant owned, leased, occupied or controlled the property; (2) defendant was negligent in the use, maintenance or management of premises; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619 [premises liability is a form of negligence]; see also Barnes v. Black (1999) 71 Cal.App.4th 1473, 1478 [“A landowner owes a duty to exercise reasonable care to maintain his or her property in such a manner as to avoid exposing others to an unreasonable risk of injury.”].)

BMW argues it did not own, possess, or control the subject premises where the Incident took place. BMW submitted evidence that Al Malaikah and Goldenvoice respectively owned, controlled, and possessed the Shrine Auditorium at the time of the Incident. (BMW-USSF 9.) BMW submitted evidence that it did not have authority, control, or supervision over the guards once they arrived at the Shrine. (BMW-DSSF 12; BMW-COE, Exh. C at 25:6-12, 25:19-23; Exh. D at 27:13-18, 29:19-21, 80:24-25, 81:1-4, 83:25-84:1-5, 120:5-19, 121:1-3; Exh. F; Exh. G.) BMW met its burden to demonstrate it did not own, lease, occupy or control the property, shifting the burden to an opposing party to raise a triable issue of material fact.

Staff Pro met its burden to raise a triable issue of material fact as to whether BMW had control over the premises. Specifically, Staff Pro submitted evidence of Aceves’ deposition testimony stating that he was employed by BMW on the night of the Incident and paid by BMW and was provided by BMW to Staff Pro as personnel for ushering services at the 2Cellos concert at the Shrine Auditorium. (SP-AMF 2.) Staff Pro submitted evidence of Aceves’ deposition testimony stating that he was stationed outside of the entry curtain for Opera Box H, and he was tasked with controlling entry to the Opera Box by reviewing tickets and only permitting guests with the appropriate tickets or with other authorization. (SP-AMF 3.) Staff Pro met its burden to raise a triable issue of material fact as to whether BMW has control over the premises.

BMW’s motion in the alternative for summary adjudication is denied as to Issues 1 and 2.

Hon. Daniel M. Crowley

Judge of the Superior Court