Judge: Frank M. Tavelman, Case: 23BBCV02714, Date: 2025-01-31 Tentative Ruling

REQUESTING ORAL ARGUMENT PER CRC 3.1308

The Court will attempt to post all Tentative Rulings at least the day prior to the hearing by 3:00 p.m.; however, the Court does not post Tentative Rulings for all matters.  

The Court will indicate in the Tentative Ruling whether the Court is requesting oral argument.  For cases where the Court is not requesting argument, then the Court is guided by California Rules of Court, Rule 3.1308(a)(1) where the Court requests notice of intent to appear.  Unless the Court directs argument in the Tentative Ruling, a party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.   

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

Notice of the ruling must be served as indicated in the tentative.  Remote appearances are permitted for all law and motion unless otherwise indicated by the Court.  

Case Number: 23BBCV02714    Hearing Date: January 31, 2025    Dept: A

MOTION FOR SUMMARY JUDGMENT

NOTICE:

The Court is not requesting oral argument on this matter.  The Court is guided by California Rules of Court, Rule 3.1308(a)(1) whereby notice of intent to appear is requested.  Unless the Court directs argument in the Tentative Ruling, no argument is required and any party seeking argument should notify all other parties and the court by 4:00 p.m. on the court day before the hearing of the party’s intention to appear and argue.  The tentative ruling will become the ruling of the court if no argument is received.  

Notice may be given either by email at BurDeptA@LACourt.org or by telephone at (818) 260-8412.

ALLEGATIONS: 

Georgia Beam (Plaintiff) brings this action against BA2 LLC dba The Idle Hour Bar (Defendant) alleging that she visited the Idle Hour Bar located at 4824 Vineland Ave, Los Angeles, CA 91601 (hereinafter “the bar”). While Plaintiff was seated in the bar patio, she was struck in the head by a patio heater which another patron had knocked over. Plaintiff states two causes of action for (1) Negligence and (2) Premises Liability.

Before the Court is Defendant’s Motion for Summary Judgment which asserts that no triable issues of material fact exist as to either of Plaintiff’s claims. Defendant identifies the following as the issues which are determinative of their motion:  

Issue No. 1: Plaintiff cannot prove the existence of a dangerous condition on the premises.

Issue No. 2: Plaintiff cannot prove that Defendant had notice of a danger.

Issue No. 3: Plaintiff cannot prove that Defendant caused the incident.

Issue No. 4: Even if Defendant was a cause, the negligence of a third party superseded Defendant’s negligence.

Plaintiff opposes the motion and Defendant replies.

ANALYSIS: 

I.                    LEGAL STANDARD 

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 843.) C.C.P.¿§ 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.”¿ (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge¿v. County of Sacramento¿(1993) 12 Cal.App.4th 59, 67, citing¿FPI Development, Inc. v. Nakashima¿(1991) 231 Cal.App.3d 367, 381-382.)¿ 

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As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (C.C.P.¿§437c(p)(2);¿Scalf v. D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿ 

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Once the defendant has met that 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 a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v.¿Paetkau¿(1998) 68 Cal.App.4th 151, 166.)¿ 

II.                 MERITS

Facts

On April 8, 2023, Georgia Beam and a friend visited the Defendant’s bar between 10 p.m. and midnight. (Exh.1, “Beam Depo.” at p. 33-34.) Plaintiff and her friend were seated at an outside table which was also occupied by several male patrons. (Id. at p. 35.) At some point Plaintiff felt a pain on the back of her head after a patio heater had fallen upon her. (Id. at p. 41-42.) Plaintiff and Defendant disagree as to what caused the patio heater to fall, but it is undisputed that one of the male patrons from the table contacted the heater just prior to its fall. (Id. at p. 77, Exh. 2 “Surveillance Footage”.) The parties also disagree as to whether the male patron was intoxicated and to what extent. Neither party appears to have submitted any declaration or deposition testimony of the male patron.

Defendant submits Surveillance Footage from their patio camera as Exhibit 2 to their motion. A review of the footage indicates that it depicts the incident Plaintiff experienced at Defendant’s bar in its entirety. The Surveillance Footage clearly indicates that the heater was contacted by the male patron with some force. (Exh. 2.) The footage depicts the male patron standing up from the table and immediately placing both hands on the patio heater. (Id. at 16 sec.) The male patron appears to lose his balance with one hand on the base of the heater and the other on the longer stem portion. (Id. at 17 sec.) The male patron then falls to the ground hugging the base of the heater while at the same time the heater contacts Plaintiff’s head. (Id. at 19 sec.) Another patron, the male patron, and some others then assist in righting the patio heater. (Id. at 22 sec.)

Discussion

Defendant’s first argument in moving for summary judgment is that Plaintiff cannot demonstrate the existence of a dangerous condition. In support of this argument, Defendant cites CACI 1003, the standard jury instruction issued in cases of Premises Liability. CACI 1003 (1) provides that a defendant is negligent in the use or maintenance of the property if a condition on the property created an “unreasonable risk of harm.”

Courts have consistently held that a store owner is not an insurer of the safety of its patrons but that they have also held that the owner does owe patrons a duty to exercise reasonable care in keeping the premises reasonably safe. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) A store owner breaches this duty when they fail to exercise ordinary care in making reasonable inspections of the premises open to customers.  The care required by the owner is commensurate with the risks involved. (Id.)

Here, the Court agrees with Defendant that that the evidence does not show the heater posed an unreasonable risk.  As discussed below, this case does not concern a property condition which was intrinsically dangerous; instead, the dangerous condition involves the actions of a third-party, the male patron.

Third-Party Actions

Generally, a store owner’s ordinary duty of care does not include the duty to protect from third-party conduct. (Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654, 663.) However, Courts have found that a duty to protect is owed where a special relationship exists between the parties. (Melton v. Boustred (2010) 183 Cal.App.4th 521, 531.) Special relationships are commonly found in negligence cases between shopping centers, restaurants, and bars, and their tenants, patrons, or invitees. (Id.) If such a relationship exists, a store owner’s duty to maintain the property in a reasonably safe condition extends to a duty to prevent injury from the reasonably foreseeable acts of third parties. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 229.)

The scope of a duty owed by a store owner arising under a special relationship is determined by balancing the foreseeability of harm against the burden of the duty imposed. (Tan v. Arnel Management Co. (2009) 170 Cal.App.4th 1087, 1095–1096.) In cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required. (Id.)

The Court finds the holdings of Morris, Delgado, Tan, Melton, and Williams are instructive in the instant case as the Surveillance Footage clearly demonstrates that the male patron was in some capacity responsible for the heater hitting Plaintiff. Each of these cases involved instances where a plaintiff stated causes of action for both Negligence and Premises Liability against a business owner. Though these cases all concern a duty to protect from third-party criminal acts, nothing in their reasoning suggests they do not apply to third-party negligent acts. While these cases conduct a more complicate analysis than common Premises Liability actions like Ortega, the still ask the same question; “Was the incident giving rise to the plaintiff’s injuries foreseeable by the store owner defendant?”

Foreseeability

The Court finds the evidence before it suggests that the male patron knocking over the heater was not reasonably foreseeable. The Court reiterates that the action which must be foreseeable here is not whether a patron would bump into the heater, it is whether a patron would place both hands on the heater in an attempt to keep himself from failing and thereby cause injury to another patron. The Surveillance Footage makes readily apparent that the male patron did substantially more than knock into the heater.

It is undisputed that Defendant has never had a previous incident where the space heaters were tipped over, including any incidents where customers bumped the heater. (Komarov Decl. ¶ 6.) This is despite Defendant employing the heaters for a number of years. (Komarov Decl. ¶ 7.) In opposition, Plaintiff points to a number of places where Defendant’s’ representatives stated that the heaters were sometimes replaced due to issues with the electrical components or rust issues. (Exh. B., Komarov Deposition at pg. 47-48; Exh. C, Ray Deposition, pgs. 8-9. 9, pg. 31.) The Court finds this argument unpersuasive as neither of these deposition statements concern issues with the heaters tipping over.

The Court also finds the evidence demonstrates that the incident was not foreseeable by virtue of the heater being placed in a walkway. The Surveillance Footage clearly shows that the heater is not placed within a walkaway or otherwise blocking the ingress/egress from the bar. The heater appears to be located in a small space between tables, with large walkways to and from the bar located behind and in front of Plaintiff’s table.  In short, Defendant has met its burden to demonstrate it did not owe a duty to Plaintiff because the incident was unforeseeable. The Court finds that Plaintiff’s evidence in opposition is insufficient to negate this showing.

In support of her opposition Plaintiff submits the declaration of Mark Burns (Burns), a general building contractor, certified accessibility inspector, and Senior Forensic Expert with forensic engineering firm Aperture. (Burns Decl. ¶¶ 2-3.) On August 19, 2024, Burns and Aperture conducted an inspection of the premises. (Burns Decl. ¶ 5.3.) This inspection included an analysis of an Amazon Basic heater (“exemplar heater”) which was purchased from Amazon by Aperture for purposes of his investigation. (Burns Decl. ¶ 10.)

It is undisputed that the original heater was not available to be inspected because it was replaced by Defendant approximately six months after the accident due to an electrical issue. (Exh C., Ray Depo. pg. 28.) Defendant has testified that the replacement heater was the same as the one in the subject incident, which are always purchased at Home Depot by their buying manager. (Komarov Decl. ¶ 5.) Burns avers that the Amazon Basic exemplar heater was “the same as was present during the Aperture inspection.”  However, Burns provides no explanation as to why an effort was not made to purchase the same model heater in conducting the inspection from Home Depot.  Nor did Burns compare the use instructions from the Home Depot heater versus the Amazon Basic exemplar heater.

Burns states that Defendant failed to fill the base of the heater with sand, a fact which Defendant does not contest. Burns states that filling the base of the heater with sand would naturally reduce its center of gravity and reduce the risk of a tipping incident. (Burns Decl. ¶ 10.) The Court finds this statement does not constitute an opinion on the likelihood of a tipping accident in the absence of the sand, only that the sand makes tipping less likely. Burns does not state whether this sand would have prevented tipping of the heater in the case where a male patron contacted the heater in the way shown on the Surveillance footage.

Even if Burns statement on the sand did speak to foreseeability in this case, the statement appears unsupported by his analysis. Burns bases Defendant’s alleged failure on his inspection of the weight of the “exemplar heater” which is as follows:

At the time of the inspection, a propane tank was attached to the exemplar heater unit. The total weight was measured at 56.5-pounds. Given that an empty propane tank by itself weighs 17-pounds, a full tank weighs 37-pounds, and the tankless heater weighs approximately 36.5-pounds, I concluded that the propane tank present at the inspection was close to empty in capacity.

(Burns Decl. ¶ 10.)

Nothing about this analysis of a completely different heater over a year later could allow Burns to determine that the propane tank was empty at the time of the incident. While Burns claims the exemplar heater from Amazon, which was labeled an Amazon Basics heater was the same as those sold at Home Depot, but fails to set forth how this conclusion was reached.  For example, if each is manufactured by Acme, Inc. and had model #1234 but different marketing labels, the Court could conclude the exemplar heater was in fact the same, but Burns did not do so.  Further, Burns’ argument that the heater needed approximately 25-27 pounds of additional sand to be placed at the bottom is based on the manual for the “exemplar heater” (Burns Decl. ¶ 10, Exh. G.) Burns provides no reason why the weight calculations between the heater that struck Plaintiff and the “exemplar heater” would be the same. Even were the calculations the same, his statement is silent as to whether that weight would have been sufficient to withstand the force exhibited on it by the male patron.

Burns’ statement on the placement of the heater is similarly unpersuasive. Burns states that the heater was placed in violation of 2019 California Fire Code § 603.4.2.1.4, which provided "Portable outdoor gas-fired heating appliances shall not be located within 5 feet of exits or exit discharges." (See Burns Decl. ¶ 9.) Despite this, Burns does not actually say that the heater in the video is within five feet of an exit or exit discharge. Instead, Burns states that, “The surveillance video showed that the subject Heater was situated within a path of travel around a free-standing wall and adjacent table.” (Burns Decl. ¶ 9.) This does not constitute a statement that the heater was located within five feet of ingress or egress of the bar. (Exh. 2.) The heater being situated in the path of travel between a table and a freestanding wall is not the same as it being positioned in a walkway leading to and from the bar. Burns’ statement is insufficient to negate the Surveillance Video showing that the heater was not placed in a walkway leading to the bar.

In short, the evidence before the Court supports the conclusion that the incident in this case was not reasonably foreseeable. Despite employing these heaters for several years, Defendant has never before encountered this issue. The Surveillance Footage shows that the heater was not placed within a walkway. Plaintiff’s evidence simply does not rebut Defendant’s showings. The Burns declaration fails to establish that the heater was dangerously placed or that it was of insufficient weight to withstand a patron pushing it over with the force employed here.

Conclusion

Defendant has sufficiently demonstrated Plaintiff’s injury was not reasonably foreseeable and thus has carried its burden to demonstrate facts negating the element of duty. The Court also finds that Plaintiff has failed to carry her burden to demonstrate a triable issue of fact as to the existence of a duty upon which she can state her causes of action for Negligence and Premises Liability. Accordingly, the Motion for Summary Judgment is GRANTED.

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RULING:

In the event the parties submit on this tentative ruling, or a party requests a signed order or the court in its discretion elects to sign a formal order, the following form will be either electronically signed or signed in hard copy and entered into the court’s records. 

ORDER 

BA2 LLC dba The Idle Hour Bar’s Motion for Summary Judgment came on regularly for hearing on January 31, 2025, with appearances/submissions as noted in the minute order for said hearing, and the court, being fully advised in the premises, did then and there rule as follows: 

THE MOTION FOR SUMMARY JUDGMENT IS GRANTED.

DEFENDANT TO GIVE NOTICE.

IT IS SO ORDERED.