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Judge: Donald F. Gaffney, Case: "Demirelli v. Darden Restaurants, Inc.", Date: 2022-08-17 Tentative Ruling

TENTATIVE RULINGS

Defendant The Irvine Company LLC’s Motion for Summary Judgment

For the reasons set forth below, Defendant The Irvine Company LLC’s Motion for Summary Judgment is DENIED.

The Irvine Company’s Objections to Evidence (ROA 502), Nos. 1- 37, are Overruled.

Summary Judgment: Summary judgment “provide[s] courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 844, 107 Cal.Rptr.2d 841, 24 P.3d 493.) The trial court properly grants the motion if all the papers submitted establish there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Id. at p. 843, 107 Cal.Rptr.2d 841, 24 P.3d 493; Code Civ. Proc., § 437c, subd. (c).)

The moving party bears the initial burden to make a prima facie showing that no triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843, 107 Cal.Rptr.2d 841, 24 P.3d 493.) If this burden is met, the party opposing the motion bears the burden of showing the existence of disputed facts. (Ibid.) Courts “ ‘construe the moving party's affidavits strictly, construe the opponent's affidavits liberally, and resolve doubts about the propriety of granting the motion in favor of the party opposing it.’ ” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1201-1202, 119 Cal.Rptr.2d 160.)

New Theory: “It is well established that the pleadings determine the scope of relevant issues on a summary judgment motion.” (Nieto v. Blue Shield of California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.) Plaintiff alleged The Irvine Company failed to prevent accidental falls.

In paragraph 36, Plaintiff alleged “Defendants, and each of them, . . negligently. .. patrolled, secured . . . or otherwise controlled the Premises by, . . . failing to take reasonable steps to eliminate the risks and dangers to guests making use of the Premises by . . . failing to hire competent employees, agents and/or contractors to secure the safety of patrons and invitees; failing to provide adequate security; failing to keep the Premises safe for patrons, invitees and residents; . . .and/or make sure the Premises had adequate and sufficient safety measures to guard against accidental falls.” (ROA 2.)

Defendant seeks to bar evidence of the failure to patrol and secure the safety of patrons, because the discovery was not supplemented. This concept is an “urban legend.” (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1318–1319.) .) “If a party who fails to amend or supplement interrogatory responses can be categorically precluded from offering undisclosed information in opposition to a later filed summary judgment motion, the need for a burden-shifting rule would be eliminated. In its place would be a rule that compels the granting of a motion for summary judgment based on factually void discovery responses, because any attempt to fill the void with new evidence would be precluded. Exxon cites no authority for such a rule. Indeed, the reasoning underlying our opinion in Scheiding v. Dinwiddie Construction Co., supra, 69 Cal.App.4th at pages 78–81, 81 Cal.Rptr.2d 360, implies that the law is to the contrary.” (Biles v. Exxon Mobil Corp. (2004) 124 Cal.App.4th 1315, 1328–1329.) (Browne v. Turner Construction Co. (2005) 127 Cal.App.4th 1334, 1349.)

Defendant relies upon Field v. U.S. Bank National Assn. (2022) 79 Cal.App.5th 703, 707. In Field, Plaintiff initially responded that she was “unsure” if Defendant provided her with the appropriate notice. “Only when Field faced summary judgment did she claim with new-found certainty that she had never received this notice.” Field is distinguishable because the Plaintiff contradicted herself. In this case, the responses to contention interrogatories do not foreclosure additional evidence.

Nondelegable Duty: “The nondelegable duties doctrine prevents a party that owes a duty to others from evading responsibility by claiming to have delegated that duty to an independent contractor hired to do the necessary work. The doctrine applies when the duty preexists and does not arise from the contract with the independent contractor.” (SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 600–601.)

“[T]he doctrine of nondelegable duty is parallel to that of respondeat superior, as both are forms of vicarious liability. Both have the aim of ensuring that the employer is responsible to innocent third parties for the negligent acts of its agents.” (John Y. v. Chaparral Treatment Center, Inc. (2002) 101 Cal.App.4th 565, 579.)

The Irvine Company has a nondelegable duty to protect the safety of its patrons.”‘ The duty which a possessor of land owes to others to put and maintain it in reasonably safe condition is nondelegable. If an independent contractor, no matter how carefully selected, is employed to perform it, the possessor is answerable for harm caused by the negligent failure of his contractor to put or maintain the buildings and structures in reasonably safe condition, irrespective of whether the contractor's negligence lies in his incompetence, carelessness, inattention or delay.’” (Koepnick v. Kashiwa Fudosan America, Inc. (2009) 173 Cal.App.4th 32, 36–37 citing Brown v. George Pepperdine Foundation (1943) 23 Cal.2d 256, 260.).

Duty of Care: “’As a rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some [special] relationship between them which gives rise to a duty to act.’ . . .’Typically, in special relationships, ‘the plaintiff is particularly vulnerable and dependent upon the defendant who, correspondingly, has some control over the plaintiff's welfare. . . . A defendant who is found to have a ‘special relationship’ with another may owe an affirmative duty to protect the other person from foreseeable harm, or to come to the aid of another in the face of ongoing harm or medical emergency.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 893.) (Emphasis added.)

“[A] duty to warn or protect may be found if the defendant has a special relationship with the potential victim that gives the victim a right to expect protection.) The relationships between common carriers and their passengers, or innkeepers and their guests, are classic examples of this type of special relationship.” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 619–620.) As the landlord for bars and restaurants, The Irvine Company arguably has a special relationship with the patrons.

In Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 883, plaintiff “claims that defendants put him in peril by bringing him to the edge of a cliff when he was highly intoxicated, leading to his fall, and that they aggravated his injuries by waiting several hours to inform the authorities of the fall.”. . . [A] person has no general duty to safeguard another from harm or to rescue an injured person. But that rule has no application where the person has caused another to be put in a position of peril of a kind from which the injuries occurred. While “[t]here may be no duty to take care of a man who is ill or intoxicated, and unable to look out for himself; ... it is another thing entirely to eject him into the danger of a street or railroad yard; and if he is injured there will be liability.” (Emphasis added).

The Irvine Company contends that it only has an obligation to protect Plaintiff from third parties. Where Plaintiff is in peril due to intoxication, The Irvine Company potentially has a duty of due care, because of the special relationship with Plaintiff.

Triable Issues of Material Facts: Code Civ. Proc., § 437c (p) (2) provides that “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.”

Michael Glasser, a security expert, analyzed the safety condition of the parking structure. (ROA 484.) He raised numerous triable issue of material facts. “AUS failed to provide adequate training of the “Security Professional” that was assigned to Fashion Island CCTV Console. Failure to provide appropriate training failed to meet the standard of care for providing security services of this type. (AUMF 84.) “Pursuant to the Division Services Contract between the Irvine Company and AUS, AUS was required to warn violators of rule infractions. AUS failed to warn Christina Demirelli and Emily Yoder that they were in violation of the Fashion Island Code of Conduct, based on their conduct in PS2.” (AUMF 85.) “Based on the Daily Activity Log of Mr. Gonzalez, it appears Mr. Gonzalez was in the Break Room and not at the CCTV Console at 22:25.” (AUMF 88.)

“AUS failed to recognize the activities of Christina Demirelli as suspicious or unusual, which is one of the responsibilities of the Security Professional who is monitoring the CCTV consoles.” (AUMF 92.) “AUS failed to dispatch officers to the locations of Christina Demirelli’s activities in parking structure #2 to resolve the issue before it escalated, pursuant to the Security Operations Procedure Manual, which states that, officers working at the console were not only responsible for monitoring the cameras and other systems, but more importantly for directing the center’s security patrol.” (AUMF 94.)

“In Mr. Glasser’s opinion, The Security Professionals fell far short of their responsibilities with respect to proactively looking for anyone who needed any sort of assistance and code of conduct violations including identifying Christina Demirelli’s activities in PS2 prior to the incident.” (AUMF 100.) “Mr. Glasser opines that based on the breaches of the standard of care by the Irvine Company and AUS, Christina Demirelli fell from PS2 and was severely injured on the date of the subject incident.” (AUMF 107.)

Thus, Plaintiff has raised a number of triable issues of material facts.

Plaintiff to give notice.

Defendants Darden Restaurants LLC, Yard House USA, Inc. and Jerome Erickson’s Motion for Summary Judgment and/or Summary Adjudication

For the reasons set forth below, Defendants Darden Restaurants LLC, Yard House USA, Inc. and Jerome Erickson’s Motion for Summary Judgment and/or Summary Adjudication is DENIED. Plaintiff’s Objections to Evidence: (ROA 495), Nos. 1-3, is Overruled.

Statutory Immunity: Bus. & Prof. Code, § 25602 (c) provides that “the consumption of alcoholic beverages rather than the serving of alcoholic beverages as the proximate cause of injuries inflicted upon another by an intoxicated person.” “By statute, a tavern owner has no duty to the public insofar as his patrons' consumption of alcohol affects those persons.” (Williams v. Saga Enterprises, Inc. (1990) 225 Cal.App.3d 142, 151.)

Issue No. 1: Plaintiff’s claim for Negligent Undertaking fails because Yard House Defendants did not undertake a duty to Plaintiff.

“’A defendant who enters upon an affirmative course of conduct affecting the interests of another is regarded as assuming a duty to act, and will be liable for negligent acts or omissions.’” (O'Malley v. Hospitality Staffing Solutions (2018) 20 Cal.App.5th 21, 28.)

“[A] negligent undertaking claim of liability to third parties requires evidence that: (1) the actor undertook, gratuitously or for consideration, to render services to another; (2) the services rendered were of a kind the actor should have recognized as necessary for the protection of third persons; (3) the actor failed to exercise reasonable care in the performance of the undertaking; (4) the actor's failure to exercise reasonable care resulted in physical harm to the third persons; and (5) either (a) the actor's carelessness increased the risk of such harm, or (b) the actor undertook to perform a duty that the other owed to the third persons, or (c) the harm was suffered because either the other or the third persons relied on the actor's undertaking.” (Paz v. State of California (2000) 22 Cal.4th 550, 559.) (Emphasis original.)

“[U]nder a negligent undertaking theory of liability, the scope of a defendant's duty presents a jury issue when there is a factual dispute as to the nature of the undertaking. . . The issue of ‘whether [a defendant's] alleged actions, if proven, would constitute an ‘undertaking’ sufficient ... to give rise to an actionable duty of care is a legal question for the court.’ However, ‘there may be fact questions ‘about precisely what it was that the defendant undertook to do.’ That is, while ‘[t]he ‘precise nature and extent’ of [an alleged negligent undertaking] duty “is a question of law ... ‘it depends on the nature and extent of the act undertaken, a question of fact.’ ” ’ [Citation.] Thus, if the record can support competing inferences [citation], or if the facts are not yet sufficiently developed [citation], ‘an ultimate finding on the existence of a duty cannot be made prior to a hearing on the merits” ’ [citation], and summary judgment is precluded. [Citations.]” (Ibid.; see CACI No. 450C [each element of the negligent undertaking theory of liability is resolved by the trier of fact].) (O'Malley v. Hospitality Staffing Solutions (2018) 20 Cal.App.5th 21, 27–28.)

There is a triable issue of material fact as to whether Defendants undertook to provide Plaintiff a sober ride. “Sergeant Oberon from the Newport Beach Police Department, who was present when Yard House employees were being interviewed following Christina’s fall, also overheard the Yard House manager say that Yard House employees were trying to make sure Christina and Ms. Yoder did not drive and got a safe ride home.” (UMF 13.) “According to Newport Beach Police Department Officer Heather Thomson, GM Erickson told her when she interviewed him later that evening, that Yard House staff made sure that Christina and Ms. Yoder weren’t driving and had a sober ride home.” (UMF 21, emphasis in original.) “Another cause was the Yard House Defendants’ decision ask Plaintiff and Ms. Yoder to leave the Yard House Fashion Island facility when significantly intoxicated and having them leave without fulfilling the undertaking they had and accepted to see that Plaintiff and Ms. Yoder had a safe ride home. Despite not interacting with Plaintiff Demirelli and Ms. Yoder, GM Erickson determined that they would be asked to leave.” (UMF 23.)

Issue No. 2: Plaintiff’s claim for Negligent Hiring, Supervision, and Retention fails because Yard House Defendants did not owe a duty to Plaintiff.

If Defendants negligently undertook to provide a sober ride home, then there is a triable issue of material fact as to whether Defendants were negligent in hiring, supervision and retention.

“Based on a BAC of .30 from an 11:30 p.m. blood draw, Plaintiff Demirelli . . .would not have been able to procure a rideshare and locate the pick-up spot without assistance.” (AUMF 169.) “The videos taken of Plaintiff Demirelli . . . in the parking structure from 22:24-22:27, 22:35-22:39, and 22:39-22:43 show that Ms. Demirelli was intoxicated based on her unsteady balance, stumbling, difficulty walking, difficulty standing, doing cartwheels in a parking structure, rolling around on the ground in the parking structure, and laying on the ground in the middle of the lanes where cars drive in the parking structure.”(AUMF 170.)

Janet Lowder, a restaurant management expert, (ROA 496) opined that “A restaurant patron should never force or ‘throw out’ an intoxicated guest, including one who might be disturbing other guests or causing a scene. If restaurant personnel must ask a guest to leave, they should arrange transportation for him or her.” (AUMF 134.) “Plaintiff Demirelli . . . and Emily Yoder’s intoxicated behaviors increased as they continued to drink. (AUMF 138.) “In so issuing the directive to ask Plaintiff Demirelli and Ms. Yoder to leave the establishment, GM Erickson also assumed a duty to see that they had a safe ride home as part of the eject-them from-the-restaurant process.” (AUMF 140.)

Thus, Plaintiff has established a triable issue of fact as to whether Defendants undertook a duty to provide Plaintiff a sober ride home and, if such an undertaking occurred, whether Defendants were negligent in the execution of that undertaking.

Plaintiff to give notice.