Judge: Elaine W. Mandel, Case: 22STCV03442, Date: 2024-04-03 Tentative Ruling
Case Number: 22STCV03442 Hearing Date: April 3, 2024 Dept: P
Tentative Rulings
Bru, et al. v. Universal
Protection Service, et al., 22STCV03442 (and related cases 22STCV03650,
22STCV03445 and 22STCV24322)
Hearing Date April
3, 2024
Defendant
Universal Protection Service, LP’s Motion for Summary Judgment, or
Alternatively, Summary Adjudication
Defendant
Universal Protection Service, LP’s Motion for Summary Adjudication of
Plaintiffs’ Claims for Punitive Damages
These cases arise
out of a fire at the Barrington Plaza apartments in which numerous plaintiffs were
injured and/or lost property and the Bru plaintiffs’ decedent perished.
Defendant
Universal Protection Service (UPS) moves for summary judgment or, in the
alternative, summary adjudication of plaintiffs’ claims in 22STCV03442 and
related cases 22STCV03650, 22STCV03445, and 22STCV24322, arguing that even
though it had a contractual duty to perform services for Douglas Emmett
Management, Inc. (DEM), it did not owe a duty to plaintiffs, and, even if it
failed to provide certain services to DEM, plaintiffs cannot prove such failure
caused or contributed to their damages.
UPS
moves for summary adjudication of the punitive damages claim, arguing there is
no clear and convincing evidence it is guilty of malice, oppression, or fraud,
and plaintiffs cannot prove the alleged misconduct was performed, authorized,
or ratified by corporate leaders.
UPS’s
Motion for Summary Judgment or Adjudication
Plaintiffs assert
causes of action for negligence and premises liability against UPS. “The elements of a negligence claim, and a
premises liability claim are the same: a legal duty of care, breach of that
duty, and proximate cause resulting in injury.” Kesner v. Superior Court
(2016) 1 Cal.5th 1132, 1158.
Duty
As an initial
matter, plaintiffs argue the motion is procedurally defective because UPS seeks
summary adjudication of some issues of duty but not others. The court
disagrees. The relevant statute states “a party may move for summary
adjudication as to … one or more issues of duty …,” and that the motion “shall be
granted only if it completely disposes of … an issue of duty.” Code Civ. Proc.,
§ 437c(f)(1). UPS can move for summary adjudication of “some” issues of duty as
long as its motion completely disposes of those issues of duty. “‘Whether a duty exists is a question of law
to be resolved by the court.’ Citation.” Hassaine v. Club Demonstration
Services, Inc. (2022) 77 Cal.App.5th 843, 850.
UPS argues it did
not owe any duty to (1) train Barrington Plaza staff on how to react during a
fire (DEM maintained that duty), (2) plan and inspect the property in
preparation for emergencies, or (3) maintain the fire life safety manuals because
(A) there is no special relationship between the plaintiffs and UPS and (B) the
factors in Rowland v. Christian (1968) 69 Cal.2d 108, 112-113 do not
support imposing those duties on UPS.
A
special relationship is not required for UPS to be liable. “It is a basic
precept of tort law that each person has a duty to exercise ordinary care and
is liable for injuries resulting from a failure to act reasonably under the
circumstances—Civil Code section 1714 reflects this default rule.” Hassaine,
supra, 77 Cal.App.5th at 851. UPS had a duty to exercise ordinary care
and is liable for injuries that resulted from failure to act reasonably.
DEM contracted
with UPS to perform services at Barrington Plaza: security, concierge services,
fire life safety work, and fire panel monitoring. Plaintiffs’ Response to
Defendant Universal Protection Service, LP’s Separate Statement of Undisputed
Material Facts (Parties’ UMF) 2.
However, “[e]ven
when a special relationship exists, courts will not find a duty where the
factors of [Rowland] counsel against it.” Jane IL Doe v. Brightstar
Residential Inc. (2022) 76 Cal.App.5th 171, 183. “Under Rowland, a
court might depart from the default duty rule by balancing factors such as [1]
foreseeability of harm, [2] certainty plaintiff suffered injury, [3] connection
between defendant’s conduct and injury, [4] moral blame attached to defendant’s
conduct, [5] policy of preventing future harm, [6] extent of the burden to
defendant and consequences to the community of imposing a duty to exercise care
with resulting liability for breach, and [7] availability, cost and prevalence
of insurance for risk involved.” Id. at fn. 4.
Coyle v. Historic
Mission Inn (2018)
24 Cal.App.5th 627 offers a simple illustration of Rowland analysis. Plaintiff
sued a restaurant owner after being bitten by a spider at the restaurant. Id.
at 631. The court held the Rowland considerations did not favor
exempting the restaurant owner from liability because: (1) it was foreseeable
the owner’s failure to exercise reasonable care in relation to black widow
spiders on the premises would place patrons at risk of injury; (2) there was certainty
the plaintiff suffered injury as a result of being bitten; (3) a jury could
conclude there was a connection between defendant’s conduct and the injury
because the evidence was that plaintiff was bitten at the restaurant and the
next day suffered paralysis due to a spider bite; (4) defendant’s conduct of
doing nothing after recording the spiders’ presence was morally blameworthy;
(5) the policy of preventing future harm favored finding a duty
because if restaurants had no liability for injuries caused by black widow
spiders, restaurants would have less incentive to protect patrons from the harm
posed by the spiders; (6) the extent of the burden to the defendant and
consequences to community of imposing a duty to exercise care with resulting
liability for breach would not be great because restaurants were already
required to have pest control measures in place for cockroaches; and (7) insurance
was widely available for personal injury caused by acts of negligence and
spiders. Id. at pp. 636-639.
UPS argues the Rowland factors mitigate against finding a duty to (1) train
Barrington Plaza staff on how to react during a fire, (2) plan and inspect the
property in preparation for emergencies, or (3) maintain the fire life safety
manuals at the property. However, the arguments regarding the Rowland
factors rely on facts that have not yet been proven. For example, it argues
without proving that it was not foreseeable a fire would start at Building A
because “[t]he Property has no unique characteristics that make it more prone
to fire than other high-rise property in the Los Angeles area.” Motion, p.
12:19-20.
The court finds
UPS’s duty arguments unpersuasive because defendant’s own evidence shows it had
a role in training Barrington Plaza employees, planning and inspecting the
property in preparation for emergencies, and maintaining the fire life safety
manuals at the property. UPS’s separate statement states that from 2018 through
2020, DEM relied on its property managers to ensure that its employees working
at the Barrington Plaza received proper training from UPS. UPS’s
Separate Statement of Undisputed Material Facts (UPS UMF) 8. Further, Bru’s
complaint alleges (and UPS does not dispute) that at various times, UPS was
known by other names, including “Allied Universal.” Bru Compl. ¶ 43.
UPS argues there was “no connection” between its training and the
injuries plaintiffs suffered. This seems to be a question of fact. The argument
that a denial of this motion is tantamount to “forcing every security company
who provides fire life safety services to become a guarantor that no fire will
occur” (motion, 15:21-22) is hyperbole. What the law does allow is for liability
to be imposed on a service provider if it is negligent in providing such
services and is found by the trier of fact to have been a substantial factor in
causing harm.
At deposition, Robert Lutes testified (1) the person most knowledgeable
about Allied Universal was Martin Fellbaum, (2) Fellbaum was the supervisor for
Allied Universal, (3) the property manager for Barrington Plaza worked with Fellbaum
to make sure that a fire drill took place and there was an online training
course that the employees could take and tenants would have access to annually,
(4) Fellbaum kept track to make sure employees received proper training in fire
life safety, (5) Allied Universal was contracted to do fire drills, (6)
Fellbaum certified fire safety directors at Barrington Plaza, (7) Fellbaum gave
fire safety directors at Barrington Plaza training, walked them through all
equipment, and showed them the manuals to make sure they understood what they
were responsible for doing to be fire safety directors, and (8) Fellbaum created
content for the High-Rise Building Emergency Plan at Barrington Plaza. UPS
Exhibit List, Ex. G – Lutes Vol. I Depo., pp. 39:8-42:13, 52:2-9; Ex. H – Lutes
Vol. II, Depo., pp. 255:6-21; 263:17-264:2, 344:12-21. Given those facts, the
court is not persuaded that the Rowland factors favor exempting UPS from
the default duty rule.
UPS has not
presented evidence sufficient to meet its initial burden on summary adjudication
regarding duty.
Causation
“The element of
causation requires there to be a connection between the defendant’s breach and
the plaintiff’s injury.” Coyle v. Historic Mission Inn Corporation
(2018) 24 Cal.App.5th 627, 645.
UPS seeks summary
adjudication of some issues of causation, arguing plaintiffs cannot prove their
claims of UPS’s maintenance of the fire life safety manuals, the annual fire
drills prior to the 2020 fire, or UPS’s failure to submit a 2019 Floor Warden
Exemption Letter were substantial factors in causing the fire, the injuries or
damages.
Unlike the issue
of duty, there is no statutory basis for summary adjudication on issues of
breach or causation. Paramount Petroleum Corp. v. Superior Court (2014)
227 Cal.App.4th 226, 244. “Summary adjudication must completely dispose of the cause of action to
which it is directed.” Nazir v. United Airlines, Inc. (2009) 178
Cal.App.4th 243, 251.
Granted, “where a plaintiff had alleged within one
‘cause of action’ two separate and distinct obligations relating to two
separate and distinct claims, the trial court could not refuse to rule on the
merits of a motion for summary adjudication filed by defendants which related
only to one of the obligations.” DeCastro West Chodorow & Burns, Inc. v.
Superior Court (1996) 47 Cal.App.4th 410, 421, citing Lilienthal &
Fowler v. Superior Court (1993) 12 Cal.App.4th 1848.
In Lielenthal, “plaintiff sued defendants for legal
malpractice in connection with two separate and distinct legal matters, which
had nothing to do with each other, and the court concluded that the two matters
involved separate and distinct causes of action regardless of how pled in the
complaint.” DeCastro, supra, 47 Cal.App.4th at 421, citing Lielenthal,
supra, at 1854.
UPS has not argued those issues of causation are separate and
distinct legal matters. Further, “[t]he purpose of the enactment of Code of
Civil Procedure section 437c, subdivision (f) [the summary adjudication
statute] was to stop the practice of piecemeal adjudication of facts that did
not completely dispose of a substantive area.” Catalano v. Superior Court
(2000) 82 Cal.App.4th 91, 97. Adjudicating whether plaintiffs’
alleged injuries were caused by maintenance of the fire life safety manuals,
the annual fire drills prior to the 2020 fire, or UPS’s failure to submit a
2019 Floor Warden Exemption Letter would not result in completely disposing
plaintiffs’ claims for premises liability or negligence against UPS. It is
procedurally improper for defendant to request summary adjudication on
causation.
In support of its
causation argument, UPS cites Union Pacific Railroad Co. v. American
Products LLC (2019) 43 Cal.App.5th 974, 981 for the proposition
that plaintiff must show a “substantial link” between omission and injury. In
that case, the trial court’s granting of summary judgment was reversed on appeal.
Plaintiff there was involved in a motor vehicle accident, lost control and
struck a light pole. The light pole, manufactured by defendant, did not “break
away” as intended when struck by plaintiff’s vehicle. The trial court agreed
with defendant’s argument that plaintiff failed to establish causation.
The appellate
court reversed, noting the pole did not cause the traffic collision but found
there was a triable issue regarding whether the injuries “might have been
prevented or lessened, but for [defendant’s] negligence. Id. at 986. The
same rationale and reasoning applies here. UPS did not cause the fire, but
there is a triable issue of fact as to whether its negligence was a substantial
factor in causing plaintiffs’ injuries and damages. DENIED.
UPS’s Motion for
Summary Adjudication of Punitive Damages
To recover
punitive damages, plaintiff must prove by “clear and convincing evidence” that
defendant engaged in malice, oppression or fraud. Cal. Civ. Code §3294. Summary
judgment is proper “when no reasonable jury could find the plaintiff’s evidence
to be clear and convincing proof of malice, fraud, or oppression.” Butte
Fire Cases (2018) 24 Cal.App.5th 1150, 1158.
UPS argues
plaintiffs cannot prove its conduct was despicable because UPS took action to
protect or minimize injury to plaintiffs to the extent permitted by its scope
of duties at Barrington Plaza. Fellbaum testified that from 2015 through 2020,
Allied Universal would participate or oversee fire drills at Barrington Plaza
one time per calendar year, and Barrington Plaza staff would send out notices
of the fire drill to residents. UPS Exhibit, Fellbaum Vol. I Depo., pp. 71:5-25,
141:24-142:6. UPS presented evidence of efforts to ensure fire safety,
sufficient to meet the initial burden on summary adjudication. The burden of
proof shifts to plaintiffs to show a triable issue of fact.
Plaintiffs rely
primarily on declarations. Retired Los Angeles Fire Marshall Craig Fry opines,
among other things, that UPS failed to meet the standard of care in the
community by failing to train and certify a Fire Safety Director and an
Assistant Fire Safety Director at Barrington Plaza
at the time of the
2020 fire. Fry decl. ¶74. Fry noted that although UPS produced a training
database printout for fire safety training at Barrington Plaza, the document
did not reflect any person undergoing the required Fire Safety Director
training in the time leading up to the 2020 fire. Fry decl. ¶71. That is
sufficient to create a triable issue of fact regarding whether UPS’s conduct
was despicable.
UPS argues the
claim for punitive damages lacks merit because there is no evidence Fellbaum
was a director, officer, or managing agent of UPS, or that any director,
officer, or managing agent of UPS authorized or ratified the alleged conduct. However,
Fellbaum testified he is an equity partner in Allied. Plaintiffs’ Exhibit List,
Ex. 17 – Fellbaum Depo., p. 20:14-16. This is sufficient to raise a triable
issue. DENIED.
Requests for
Judicial Notice
Plaintiffs’
request for judicial notice are granted.
Objections in Universal
Protection’s MSJ/MSA
Plaintiffs’
Objections: Objection 1 SUSTAINED (hearsay), objection 2 SUSTAINED (hearsay).
Objections in Universal Protection’s Punitive Damages MSA
Objections 1
SUSTAINED (hearsay).