Judge: John J. Kralik, Case: 23BBCV00065, Date: 2024-05-17 Tentative Ruling

Case Number: 23BBCV00065    Hearing Date: May 17, 2024    Dept: NCB

Superior Court of California

County of Los Angeles

North Central District

Department B

BACKGROUND

A.    Allegations

Plaintiff Lauree James (“Plaintiff”) alleges that on April 1, 2022 at approximately 1:30 p.m., Plaintiff was lawfully on the premises of the Radford Studio Center, located at 4024 Radford Ave., Studio City, CA 91604.  This action was filed against Defendants SMAC Entertainment, LLC (“SMAC”), Sony Pictures Television, Inc. (“Sony”), and Radford Studio Center, LLC (“Radford”). 

Plaintiff alleges she was on the premises in the course of her employment as a prop master for the television show “The Talk,” which was being taped at the premises.  Plaintiff alleges at that time and place, she was exiting sound stage number 16 when she encountered a dangerous condition, including but not limited to a parked forklift with its forks lowered to the ground.  Plaintiff alleges it was parked in a manner such that it was obstructed from Plaintiff’s view and its extended forklift represented a tripping danger and a trap for pedestrians in Plaintiff’s position. 

The complaint, filed January 11, 2023, alleges causes of action for: (1) premises liability; and (2) general negligence.   

On June 9, 2023, Plaintiff amended the complaint to name Trackdown Productions, Inc. as Doe 1 and Brett Crandall as Doe 2. 

On November 6, 2023, Plaintiff and Defendants Sony and SMAC stipulated that: (1) Plaintiff would dismiss Sony and SMAC without prejudice; (2) Plaintiff retains the right to rename Sony and SMAC should new evidence be discovered implicating them in the causes of action; and (3) should Plaintiff rename Sony and SMAC, Sony and SMAC will not object on statute of limitations grounds. 

B.     Motion on Calendar

On November 27, 2023, Defendant Trackdown Productions, Inc. (“Trackdown”) filed a motion for summary judgment to the complaint on the grounds that the undisputed material facts establish no evidence exists to demonstrate Trackdown's liability to Plaintiff for the two causes of action alleged in the complaint, given that Plaintiff cannot establish the essential elements. Trackdown also argues that its affirmative defense of “open and obvious condition” negates the "duty" element of the premises liability cause of action.  It also argues that Plaintiff does not possess and cannot reasonably obtain, needed evidence to support the elements of the two causes of action.  Thus, it argues that no triable issue of material fact exists as to the cause of action alleged against Trackdown, such that Trackdown is entitled to summary judgment as a matter of law.

On April 26, 2024, Plaintiff filed opposition papers.

On May 3, 2024, Defendants Radford Studio Center, LLC (“Radford”) and Brett Crandall (“Crandall”) filed a joinder to Plaintiff’s opposition papers. 

On May 10, 2024, Trackdown filed reply papers to Plaintiff’s opposition.  Trackdown also filed opposition papers to Radford and Crandall’s joinder. 

EVIDENTIARY OBJECTIONS

            With the opposition papers, Plaintiff submitted evidentiary objections to facts 20 and 21 in Trackdown’s separate statement in support of the motion.  The objections to material facts are improper.  If Plaintiff is objecting to the facts, the proper way to respond to the separate statement is to dispute the facts with opposing evidence.  The objections to facts 20 and 21 in the separate statement is overruled. 

            With the reply papers, Trackdown submitted evidentiary objections to Plaintiff’s opposition evidence.  Trackdown objects to Sako S. Bederian’s declaration at paragraphs 7, 15, and 16 (which reference exhibits 5, 13, and 14, respectively).  Objection Nos. 1-3 are overruled.      

REQUEST FOR JUDICIAL NOTICE

            With the joinder papers, Radford and Crandall seek judicial notice of: (1) Plaintiff’s opposition brief and separate statement to the motion; and (2) Plaintiff’s objection to evidence submitted with the opposition brief.  The request is granted.  (Evid. Code, § 452(d).)

With the joinder, Radford and Crandall request that they partially join in Plaintiff’s opposition at sections IV, V, and VI. 

DISCUSSION

            Trackdown moves for summary judgment on Plaintiff’s complaint, arguing that: (1) it cannot be liable for premises liability because it did not own, maintain, manage, control, or operate the subject premises; (2) Plaintiff cannot establish any of the elements of duty, breach, and causation; and (3) its “open and obvious” affirmative defense negates the duty element. 

A.    1^st cause of action for Premises Liability

The elements of a premises liability claim based on negligence are: (1) defendant owed a duty of care to plaintiff; (2) defendant breached that duty; and (3) the breach proximately caused injury and damages. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)   “Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.” (Id.)

In the opposition brief, Plaintiff states: “Plaintiff is not contesting the adjudication of her premises liability cause of action in favor of Trackdown.  Plaintiff acknowledges that Trackdown did not have control or ownership of the physical area of the premises where the incident occurred.”  (Opp. at p.9.)  As this is in section IV of the opposition papers, Radford and Crandall join in Plaintiff’s arguments. 

In light of Plaintiff’s concession that summary adjudication is appropriate on the 1^st cause of action, the Court is inclined to grant the motion as to the 1^st cause of action.  However, the Court notes that Trackdown styled this motion as a motion for summary judgment only and did not ask alternative relief for summary adjudication. 

B.     2^nd cause of action for General Negligence

The elements of a negligence cause of action are “duty, breach of duty, proximate cause, and damages.”  (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 892.) 

The following facts are undisputed by the parties.  On January 11, 2023, Plaintiff filed a complaint against SMAC, Sony Pictures Television, Inc. (“SPT”), Trackdown, and Radford for premises liability and general negligence.  (Fact 1.)  Trackdown is an indirect, wholly-owned subsidiary of Sony Pictures Entertainment, Inc., which is the parent entity of SPT.  (Id. at 3.)  Trackdown is the production company for the television game show “100,000 Pyramid” (the “Pyramid”).  (Id. at 4.)  On February 23, 2022, Trackdown entered into a written Videotape Facilities Agreement (“Agreement”) under which Trackdown rented stage space from Radford for the Pyramid’s sixth season.  (Id. at 5.)  Specifically, Trackdown rented stage 15 at the premises; across from stage 15 is stage 16, where “The Talk” is filmed.  (Id. at 6.)  Exhibit A to the Agreement requires “all equipment… either provided within the Flat Facilities Fee or requested as excess, including lifts and other rigging equipment and specialty equipment provided by production personnel must be supplied exclusively by [Radford] regardless if equipment is to be used on the premises or on location…”  (Id. at 7.)  Prior to April 1, 2022, Pyramid was filmed in New York, and production was in the process of being moved to Los Angeles as of April 1, 2022.  (Id. at 8.)  Trackdown has never been Plaintiff’s employer, including on April 1, 2022, and has never had any involvement in the production of “The Talk.”  (Id. at 9.)  During the setup for Pyramid on Stage 15, pursuant to Paragraph 6(a) of the Agreement, Trackdown requested a forklift from Radford from March 29, 2022 to April 1, 2022 to unload trucks coming from New York with supplies and equipment; Radford contracted with Teamsters Union Local 399 to hire a forklift driver.  (Id. at 10.)  After completing the 4-day job, Radford invoiced Trackdown for the forklift and driver, Crandall; Trackdown paid the invoice.  (Id. at 11.)  If Trackdown wanted to use its own forklift and operator, it was not allowed to under the Agreement.  (Id. at 26.)  The way Crandall parked his forklift prior to the incident created a tripping hazard.  (Id. at 27.)

Trackdown argues that it owed Plaintiff no duty as it did not own the premises at which Plaintiff fell, it was not responsible for the safety of individuals on the premises, and the forklift was operated by Radford’s employee Crandall such that Trackdown did not own or operate the subject forklift.  Trackdown provides the declaration of its Executive in Charge of Production, Jim Tomlinson, who states that Trackdown did not own or operate the subject forklift used by Crandall on the premises on April 1, 2022, did not have control over how the forklift was used with respect to the production of Pyramid, and had no notice of any dangerous condition on the premises prior to April 1, 2022.  (Fact 18.)  Trackdown argues that Radford exclusively owned the forklift over which Plaintiff allegedly tripped and fell at Radford Studios and that Radford was Crandall’s employer.  (Id. at 22-23.) 

Trackdown also argues that it did not breach any duty to Plaintiff because Crandall was hired by Radford to operate the forklift; Trackdown did not hire, retain, train, control, supervise, or employ Crandall; and it did not give instructions to Crandall other than where certain items should be moved.  (Id. at 12, 14, 15.)  Additionally, Trackdown argues that Plaintiff cannot establish the element of “causation” because it did not own the premises or the forklift, it was not responsible for the safety of individuals on the premises, and it did not direct Crandall on how to park the forklift.  (Fact 15-18.) 

However, in opposition, Plaintiff argues that Trackdown is liable under a respondeat superior theory and that Trackdown owed a duty to Plaintiff by virtue of being Crandall’s employer at the time of the incident.  According to the Agreement at paragraph 10 “Producer Control”:

All persons furnished by Studio [Radford] to Producer [Trackdown] in connection with Producer’s use of the facilities provided hereunder, including, without limitations, all so-called ‘below-the-line” employees, shall be governed by the instructions and directions of Producer (all subject to the rules and regulations heretofore or hereafter established by Studio governing Producer’s use of Studio’s facilities and premises), and Producer understands and acknowledges that Producer shall be solely liable and responsible for the acts and omissions, negligent or otherwise, of all such persons while they are under the direction and control of Producer.

(Pl.’s Additional Material Facts [AMF] 4.)  Plaintiff argues that Trackdown requested from Radford 2 forklifts and 2 operators for the Pyramid and Crandall was assigned to Trackdown as a forklift operator, making him a “below-the-line” employee per the Agreement who was governed by the instructions and directions of Trackdown.  (Pl.’s AMF 6-8; see Pl.’s Fact 18, 23.)  Radford’s PMK, David Mo, testified in his deposition that once a forklift was rented out through an agreement, the safe monitoring, use, and operation of the forklift was under the supervision of the production company.  (Bederian Decl., Ex. 3 [Mo Depo. at pp.75, 79]; see also Ex. 11 [Radford’s SROG responses at Nos. 2, 3, 4, and 8].)  In his deposition, Crandall testified that while he could not recall the person in particular, he reported to the key grip persons for lighting or electrical and that it was the Pyramid crew that told him specifically what trucks to unload and load for equipment inside the stage.  (Pl.’s AMF 20; Crandall Depo. at pp.75-76.)  Plaintiff argues that Matthew Kwan, a “key grip” employee of Trackdown, was in charge of instructing and directing forklift drivers and Trackdown dictated the time of Crandall’s lunch breaks and the duration of his employment.  (Pl’s AMF. at 13-14.)  Plaintiff argues that at the time of the incident, Crandall was under the control, direction, and supervision of Trackdown, he was an employee of Trackdown, and Trackdown had the ability to terminate Crandall (as opposed to Radford).  (Id. at 18-19, 22; Bederian Decl., Ex. 1 [Crandall Depo. at pp. 21, 77, 104 (stating that he was paid by the whoever was running the show and not Radford, that he gets forklift directions form the person in charge, and that the production company had the authority to terminate him).)  Plaintiff also provides evidence that Crandall’s wages were paid through Entertainment Partners, a payroll company on behalf of Radford, which Trackdown reimbursed Radford 100% for Crandall’s wages, plus Trackdown paid 55.75% of Crandall’s payroll benefits, such that Crandall’s wages were ultimately paid by Trackdown.  (Pl.’s AMF 25-27.) 

Here, the Court finds that there is a triable issue of material fact regarding whether Trackdown owed a duty to Plaintiff based on the theory that it was the employer of Crandall at the time the forklift was being rented from Radford and operated by Crandall pursuant to the Agreement.  There is also a triable issue of material fact regarding whether Trackdown breached this duty when Crandall, who was trained to place warning cones for pedestrians, failed to place cones or signs to warn people about the forklift’s forks at the time of the incident.  (Pl.’s AMF 35-36.)  Although the forklift was owned by Radford, there are triable issues of material fact regarding whether Trackdown assumed control over the forklift once it became the lessee/possessory owner of the forklift and whether it became the employer of Crandall based on  the terms of the Agreement.  (Pl.’s Fact 18, 23.)

With respect to Trackdown’s “open and obvious” affirmative defense, the Court finds there are triable issues of material fact as to the defense as well.  “[B]ecause the possessor or operator of a given premises is not an insurer of the safety of invitees onto his premises, he is entitled to assume that any such invitee will perceive that which should be obvious to him in the ordinary use of his senses.”  (Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 121.) However, the fact that Plaintiff traversed the area, she did not see the allegedly dangerous condition, or the condition was “open and obvious” does not mean that Trackdown is not liable for Plaintiff’s injury.  (See Roberts v. Patterson (1959) 170 Cal.App.2d 661, 667; Garber v. Los Angeles (1964) 226 Cal.App.2d 349, 358.)  The fact that a hazard is open and obvious does not relieve a landowner of all possible duty, or breach of duty, with respect to it.  “The modern and controlling law on this subject is that although the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is obvious, . . . there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability.”  (Martinez v. Chippewa Enters., Inc. (2004) 121 Cal.App.4th 1179, 1184 [quotation marks and emphasis omitted]; Donohue v. San Francisco Housing Authority (1993) 16 Cal.App.4th 658, 665 [stating the obvious danger exception is in reality a recharacterization of the assumption of the risk doctrine, which has now been merged with comparative negligence and may relieve a property owner of a duty to warn, but does not absolve him of the duty to remedy the condition].)  Furthermore, “[i]t is well settled that, in the absence of notice or knowledge to the contrary, a pedestrian making normal use of the [walkway] has a right to assume that it is in reasonably safe condition, and while he must use ordinary care for his personal safety and make reasonable use of his faculties to avoid injury to himself, he is not required to keep his eyes fixed on the ground or to be on a constant lookout for danger.” (Peters v. City & County of San Francisco (1953) 41 Cal.2d 419, 424, superseded on different grounds.) 

Trackdown argues that on April 1, 2022 around 1:30 p.m., Crandall parked the forklift on “My Three Sons Street” on the premises on the side of building house stage 16, where Plaintiff was working, such that the forklift tines were on the ground and “poking out” past stage 16.  (Fact 19.)  Trackdown argues that Plaintiff was not paying attention to her surroundings or her own safety as she walked across the production lot.  (Id. at 20.)  It argues that the forklift was clearly visible to anyone exiting stage 16 from the “entrance only” door where Plaintiff exited.  (Id. at 21.)  However, a reasonable person could find that the roadway/walkway surface where Plaintiff was traversing may pose a substantial risk of harm to other pedestrians because a person walking while looking straight forward may not have had the ability to perceive the condition of the ground, particularly as there were no cones or signs to warn pedestrians that the forklift forks’ tips were lowered to the ground and constituted a tripping hazard.  (See Pl.’s AMF 32-36.)  Radford’s PMK, Mr. Mo, also opined that the forklift constituted a tripping hazard because it was parked in an inappropriate area at the exit.  (Mo Depo. at pp.92, 94, 98; Pl.’s Fact 21.)  Thus, the Court finds that there is a triable issue of material fact as to the application of the affirmative defense.

            Thus, the motion is denied as to the 2^nd cause of action for general negligence. 

            As indicated above, while Plaintiff concedes that summary adjudication is proper as to the 1^st cause of action, Trackdown only brought this motion as a motion for summary judgment.  As Trackdown did not bring or notice this motion as a motion for summary adjudication in the alternative to summary judgment, the Court cannot grant summary adjudication on the 1^st cause of action.  (CRC Rule 3.1350(b).)  As such, the motion for summary judgment is denied. 

CONCLUSION AND ORDER 

Defendant Trackdown Productions, Inc.’s motion for summary judgment is denied. 

Defendant shall provide notice of this order.

DATED: May 17, 2024                                              ___________________________

                                                                              John Kralik

                                                                              Judge of the Superior Court