Judge Kerry Bensinger, Case 20STCV05369 2023-01-17 Tentative Ruling

On February 10, 2020, plaintiff Arthur Martinez (“Plaintiff”) filed this action against defendant Dignity Community Care dba Glendale Memorial Hospital, erroneously sued separately as “Dignity Community Care” and “Dignity Health dba Glendale Memorial Hospital” (“Dignity”), and Does 1 to 50 inclusive, asserting causes for (1) general negligence and (2) premises liability.

On May 13, 2020, Plaintiff amended the Complaint to substitute WPS USA Corp. dba WPS Parking Systems USA Corp. (“WPS”) for the defendant sued fictitiously as Doe 1, Parking Management Services of America (PMSA), Inc. (“PMSA”), Doe 2, and PCAM, LLC (“PCAM”), Doe 3.

The attachments to the Complaint allege the following. On or about July 9, 2019, Plaintiff was lawfully on the premises of the defendants, at or near 1420 S. Central Ave., Glendale, CA 91204. Plaintiff was walking in the parking structure when suddenly, and without warning, the entrance and/or exit gate barrier of the structure slammed down onto Plaintiff, causing him to sustain severe injuries and pain. Each of the defendants had sole and exclusive custody and control of the aforesaid building and activities occurring at the building, and owed Plaintiff a duty to keep the premises in a safe condition. Instead, each of the defendants were negligent, careless, and reckless in their duty and caused the premises to be and remain in a dangerous and unsafe condition. They also failed to properly warn of the dangerous condition. Defendants knew or should have known that the entrance and/or exit gate barrier in the parking structure was dangerous, defective, and in an unsafe condition. The entrance and/or exit gate barrier was not properly installed, maintained, cleaned, and/or protected.

On August 24, 2022, Dignity filed a motion for summary judgment on the ground that it was neither negligent nor a substantial cause of Plaintiff’s injuries.

On November 3, 2022, WPS filed the instant motion for summary judgment, contending (like Dignity) that it was neither negligent nor the cause or contribution of the incident or Plaintiff’s alleged injuries.

On November 9, 2022, the Court issued an order denying Dignity’s motion for summary judgment.

On January 3, 2023, Plaintiff filed a request for judicial notice of the following:

4. 10/26/2022 Objection-Plaintiff’s Objections to Evidence in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary Judgement; and

5. 10/26/2022 Response-Plaintiff’s Arthur Martinez’s Response to Defendant Dignity Community Care’s Separate Statement in Support of Its Motion for Summary Judgment, or in the Alternative, for Summary Adjudication.

Plaintiff’s unopposed request for judicial notice is GRANTED. (Evid. Code § 452, subd. (d) [providing that a court may take judicial notice of court records].)

The Court rules on Plaintiff’s evidentiary objections (filed on January 3, 2023) as follows.

Objection No. 1: OVERRULED as to Paragraph 11, p. 3:3-5 (“Prior to the incident …,” until “involving gate components”), but SUSTAINED as to Paragraph 11, p. 3:5-7 (“Based on my review of records of the service calls … operate as intended”).

The purpose of a motion for summary judgment or summary adjudication “is to provide 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, 843.) “Code of Civil Procedure section 437c, subdivision (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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)

A defendant moving for summary judgment or summary adjudication “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 . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“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 the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “The plaintiff … shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467 (“Avivi”).)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; Code Civ. Proc., § 437c, subd. (c).)

“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.)

Here, Defendant WPS contends that it is entitled to judgment as a matter of law because, among other reasons, it did not own, possess, or control the premises where Plaintiff was injured.

“One who owns, possesses or controls land has a duty to act reasonably to protect others from a dangerous condition on the property.” (Soto v. Union Pacific Railroad Co. (2020) 45 Cal.App.5th 168, 177 (“Soto”).)

“Conversely, ‘[a] defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess or control.’ [Citations.]” (Soto, supra, 45 Cal.App.5th at p. 177.)

To prove that it did not own, possess, or control the premises or the gate where the incident occurred, WPS submits the declaration of Ralpha Sagles (“Sagles”). Sagles attests that the facts set forth in his declaration are known to him personally and he could and would competently testify thereto, including the following. (Declaration of Ralph Sagles, filed November 3, 2022 (“Sagles Decl.”), ¶ 1.)

Sagles was employed as an IT Technician at WPS, at all relevant times, including on July 9, 2019, when the incident allegedly occurred. (Sagles Decl., ¶ 2.) His principal duties included the supervision and oversight of barrier gate installations by WPS throughout the United States, including Southern California. (Sagles Decl., ¶ 3.) His duties specifically included overseeing and, at times, personally handling the installation and testing of barrier gates in parking structures and lots. (Sagles Decl., ¶ 3.) He is familiar with all aspects relating to barrier gates in parking structures, including but not limited to the purchase, installation, testing, inspection, maintenance and repair of barrier gates and all system components. (Sagles Decl., ¶ 4.)

Sagles is familiar with the barrier gate that was installed in the exit pathway reserved for hospital staff and employees in the parking structure at Glendale Memorial Hospital, located at 1420 S. Central Ave., Glendale, CA 91204 (the “Premises”). (Sagles Decl., ¶ 5.) Under his direction and control, the barrier gate was installed and tested in or about August 2016, at the Premises owned and/or controlled by Dignity. (Sagles Decl., ¶ 5.)

Sagles personally tested the barrier gate at the Premises during the installation phase and determined that the gate functioned properly and as intended. (Sagles Decl., ¶ 6.)

WPS did not own or control the Premises. (Sagles Decl., ¶¶ 7, 8.) WPS is not a product manufacturer of barrier gates and did not manufacture the barrier gate located at the Premises. (Sagles Decl., ¶ 9.) WPS was not under any scheduled service or maintenance agreement with Dignity for the barrier gate prior to the incident involving Plaintiff. (Sagles Decl., ¶ 10.) Prior to the incident involving Plaintiff, WPS made several service calls to the Premises at the request of Dignity, and the service calls were made to address issues involving gate components. (Sagles Decl., ¶¶ 1, 11.) However, WPS did not receive a complaint from Dignity or anyone else regarding any significant issue in the operation of the barrier gate. (Sagles Decl., ¶ 12.) Further, no dangerous condition relating to the barrier gate’s operation and functionality was ever reported to WPS prior to the alleged incident. (Sagles Decl., ¶ 12.)

The Court finds that WPS has met its initial burden of showing that Plaintiff’s premises liability and negligence causes of action have no merit by showing that the element of duty (i.e., its ownership, possession, or control of the Premises or the gate at issue) cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).)

Accordingly, the burden shifts to the Plaintiff to show triable issue of one or more material fact exists as to the element of duty (i.e., whether WPS had ownership, possession, or control over the Premises or the gate at issue). (Code Civ. Proc., § 437c, subd. (p)(2).)

First, Plaintiff suggests that because (1) the Court sustained his objections to Dignity’s separate statement filed in support of the Dignity’s motion for summary judgment, (2) found that Dignity failed to meet its initial burden, and (3) WPS “essentially recycled verbatim several of [Dignity’s] Separate Statement to support its [instant] Motion for Summary Judgment,” that in ruling on the instant motion, the Court should apply its evidentiary objection rulings in its previous order and find that WPS has not met its initial burden. (Opposition, p. 1:22-26.)

However, the Court’s prior order is not necessarily applicable or binding on WPS. Most importantly, “a court may take judicial notice that a prior order was entered, but it may not take judicial notice of the truth of factual findings made therein.” (Steed v. Department of Consumer Affairs (2012) 204 Cal.App.4th 112, 121 [italics removed].) Accordingly, the Court rejects Plaintiff’s suggestion to incorporate the substance of its findings or rulings in its prior order in its current ruling,

Second, Plaintiff argues, WPS has not met its initial burden for summary judgment. (Opposition, p. 10:17-22.) The Court disagrees per its findings above.

Third, Plaintiff argues, WPS’s argument that the “barrier gate operated as intended at all times before the incident occurred,” is contradicted by the deposition testimony of “Juan Avila,” defendant PCAM’s person most knowledgeable.[1] (Opposition, pp. 2:25; 6:15-16.) Plaintiff argues that Avila testified that if a person is walking under the gate, it is not supposed to close. (Opposition, pp. 1:6-9; 11:14-15.) Avila testified that he was working for Defendant PCAM as a parking manager on the date of the incident on July 9, 2019, and currently works as PCAM’s Operations Manager. (Werbin Decl., Exhibit 3 (“Avila Depo”), pp. 11:16-18; 12:4-7.) His office is located at the Glendale Memorial Hospital, inside the same parking structure where the incident took place. (Avila Depo., pp. 11:3-12.)

As part of his job responsibilities, Avila would make a visual inspection of the parking arm gates, and clean the machines to remove dust. (Avila Depo., pp. 12:8-13:1.) When he started working for the company, the previous manager showed him how to look at the machines, make sure they are in working order. (Avila Depo., p. 13:5-14.) If he heard funny noises, he would “at that point call one of [PCAM’s] inspectors to come out and look at it wherever the equipment is.” (Avila Depo., p. 13:12-17.)

When asked: “Whose job was it to maintain the parking arm gates in July of 2019?” (Avila Depo., p. 13:18-19.) Avila answered: “It would be us, Parking Company of America [PCAM].” (Avila Depo., p. 13:20.)

If something “very minor” needed to be fixed with the parking arm gate, Avila would fix it himself, but if the issue was not “very minor,” PCAM would reach out to WPS to have them come service it. (Avila Depo., pp. 13:21-14:6.)

Avila further testified (over counsel’s objection), that WPS installed a sensor for the gate arm that is located on the ground inside/underneath the concrete, that is supposed to prevent it from coming down on a person or a car. (Avila Depo., p. 3:7-14.)

Although Avila has never “observed anyone else stand underneath the arm gate while it’s in an up position,” when he has personally stood under the arm gate while it was in the up position, the gate’s arm has not come down on him. (Avila Depo., p. 30:14-23.)

The Court finds that Avila’s deposition does not raise a triable issue of material fact concerning whether (1) WSP was negligent, or (2) had any ownership, control, or possession of the gate or Premises for the following reasons.

Avila testified that PCAM did not have a written policy and procedure regarding how often the parking arm gate would be inspected. (Avila Depo., p. 55:16-19.)

However, Avila made it his personal goal to inspect the parking arm gate every day, including in and around the time of the incident. (Avila Depo., pp. 55:20-56:4.) He would inspect the parking arm gate at the beginning of his shift in the morning. (Avila Depo., pp. 56:4-8.) He was working morning shifts in and around the time of the incident. (Avila Depo., p. 56:12-15.)

On the date of the incident, Avila “inspected the equipment, the gate arm itself,” specifically, he “[c]heck[ed] and ma[de] sure there’s no damage to the gate,” and also “[m]ade sure it worked properly and went up and down the way it’s supposed to.” (Avila Depo., p. 25:4-14.)

When asked: “Did you find any damage or any issues with the gate at that time?” (Avila Depo., p. 25:15-16.) Avila answered: “No.” (Avila Depo., p. 25:17.)

Therefore, on the date of the accident, Avila inspected the gate arm to make sure it “worked properly and went up and down the way it’s supposed to” and did not “find any damage or any issues with the gate.”

Accordingly, Plaintiff’s argument, that Avila’s testimony contradicts WPS’s argument is meritless. Indeed, the two are consistent.

Fourth, Plaintiff argues, Sagles’s testimony that WPS made “several” service calls from August 2016 to July 2019, tends to indicate that the gate was not functioning properly and as intended. (Opposition, p. 1:13-15.)

Plaintiff’s argument is undermined by his own evidence (Avila’s deposition transcript) because Avila testified that he inspected the gate on the date of the incident, and it was functioning properly and as intended. Plaintiff has not produced any evidence whatsoever indicating that the gate was not functioning properly on that date, let alone that WSP was responsible for any speculated malfunction. Plaintiff has also failed to submit evidence contradicting Sagles’s testimony that (1) WPS never received any complaint from Dignity or anyone else regarding any significant issue in the operation of the barrier gate, and (2) no dangerous condition relating to the barrier gate’s operation and functionality was ever reported to WPS prior to the alleged incident. (Sagles Decl., ¶ 12.)

Fifth, Plaintiff argues, that “WPS had control over the gate alleged to be in dangerous condition on the date of the incident as it controlled the installation and continued to control the operation of the arm through apparently routine service and maintenance call indicated to be ‘several’ over a three year period.” (Opposition, p. 18:10-13.)

However, as stated above, Avila testified in his deposition that it was PCAM that was responsible for “maintenance.” Granted (1) Avila testified that if he noticed that there was an issue with the gate system that he could not personally fix, PCAM would contact WPS for service, and (2) Sagles acknowledged in his declaration that WPS serviced PCAM several times. Nonetheless, Avila testified that he personally inspected the gate system on the date of the incident and did not find anything wrong. To the extent that Plaintiff is arguing that WPS’s was negligent in its repair or that its servicing caused an issue with the gate, that allegation is contradicted by Avila’s testimony and Plaintiff has not produced any evidence supporting that allegation.

Sixth, Plaintiff argues, WPS “installed the arm gate without following manufacturer instructions in relation to pedestrians.” (Opposition, p. 13:7-8.) Plaintiff cites to his additional material facts (“PAMF”) 13, in support of that argument. (Opposition, p. 5:9-12.) PAMF No. 13, cites Paragraph 15 of the declaration of Eris J. Barillas, CPSI, CXLT (“Barillas”). (Werbin Decl., Exhibit 1 (“Barillas Decl.”).)

Barillas attests to the following facts. He is a Forensic Expert for Aperture, a forensic engineering firm. (Barillas Decl., ¶ 3.) In 2008, he began working for Aperture’s partner WEXCO (a construction consulting, engineering, safety, and management firm). (Barillas Decl., ¶ 3.) He has “extensive technical and practical experience in conducting safety investigations and analyses of premises and products.” (Barillas Decl., ¶ 3.) He has “personally investigated and analyzed more than 6,000 cases, including numerous struck-by-objects incidents and incidents involving gates.” (Barillas Decl., ¶ 3.) Plaintiff retained him “as a safety and liability expert to render opinions surrounding the incident that occurred on July 9, 2019, when Plaintiff was struck by an entrance/exit gate arm …” at issue in this case. (Barillas Decl., ¶ 3.)

Barillas testified that, according to “the operating instructions for the subject gate … ‘Pedestrians must be supplied with a separate access opening. The pedestrian access opening shall be designed to promote pedestrian usage. Locate the barrier such that persons will not come into contact with the vehicular passageway during the entire path of travel of the vehicular barrier.’” (Barillas Decl., ¶ 15, citing “p. 5, Operating Instructions, Version 5, attached hereto [to his declaration] as Exhibit ‘E’.”) “Furthermore, the barrier is not approved for pedestrian traffic. (Operating Instructions, p. 15) Since the barrier is not designed to detect pedestrian traffic, with the result that the barrier/gate arm likely to come down on a pedestrian passing beneath barrier/gate arm. By installing the subject barrier/gate arm near a pedestrian pathway without any warning signage or clear separation, Defendants WPS created a situation in which pedestrians were likely to pass near or under the barrier. This is contrary to the barrier manufacturer’s written instructions.” (Barillas Decl., ¶ 15.)

However, the Operating Instructions has not been authenticated. In other words, there has been no testimony given that these instructions apply to WPS or were in place at the time WPS installed the gate.

In any event, the page of the Operating Instructions Barillas is referring to is not Page 5 (which he cites), but Page 14. (See Barillas Decl., Exhibit E, p. 14, Section 2 – Safety, 2.1 – Intended use of the barriers, the first paragraph [“The MAGNETIC MHTM^TM MicroDrive barrier is intended for installation only on passageway used for vehicles. Pedestrians must be supplied with a separate access opening. The pedestrian access opening shall be designed to promote pedestrian usage. Locate the barrier such that persons will not come in contact with the vehicular passageway during the entire path of travel of the vehicular barrier”].) Page 15 of the Operating Instructions warn: “The barriers are not approved for pedestrian traffic, bicycles, or animals.”

Avila testified there was an area “to the left of the parking gate arm …” where pedestrians could enter or exit. (Werbin Decl., Exhibit 3, Avila Depo., p. 24:18-20.) Therefore, it is reasonable to infer that there was a “separate access opening,” for the pedestrians to enter the structure.

In addition, nowhere in the Operating Instructions does it say that the entity installing the gate is responsible for providing pedestrians with “a separate access opening.”

Further, Barilla’s opinion that “[s]ince the barrier is not designed to detect pedestrian traffic, with the result that the barrier/gate arm likely to come down on a pedestrian passing beneath barrier/gate arm,” contradicts the argument Plaintiff was trying to make that there was a sensor installed that apparently is supposed to prevent the gate from coming down on people or cars.

Barillas then concludes without supporting evidence that: “By installing the subject barrier/gate arm near a pedestrian pathway without any warning signage or clear separation, Defendants WPS created a situation in which pedestrians were likely to pass near or under the barrier. This is contrary to the barrier manufacturer’s written instructions.” However, the fact that the expert recognizes that there was “a pedestrian pathway,” undermines his opinion that there was no separate access opening. Further, Barillas fails to identify where in the Operating Instructions the “manufacturer’s written instructions” required WPS to install “signage or clear separation.”

Seventh, Plaintiff argues, that the doctrine of res ipsa loquitor applies to this case. (Opposition, p. 14:3.)

“Moving defendants have ‘“the burden on summary judgment of negating only those ‘“‘theories of liability as alleged in the complaint’”’ and [are] not obliged to “‘“‘refute liability on some theoretical possibility not included in the pleadings,’”’” simply because such a claim was raised in plaintiff's declaration in opposition to the motion for summary judgment. [Citation.]’ [Citation.]” (Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal.App.4th 261, 290 [italics removed].)

Here, Plaintiff’s complaint did not alert WPS that Plaintiff was pursuing a res ipsa loquitor theory of liability against it. Therefore, WPS did not need to address that theory in its moving papers.

Even if the Court were to consider the argument, there is no evidence the doctrine would apply here. “The doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible.” (Howe v. Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1161 (“Howe”).)

“In order to invoke res ipsa loquitur, the plaintiff has the burden to establish three conditions: ‘(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.’ [Citations.]” (Howe, supra, 189 Cal.App.4th at p. 1161 [emphasis added].)

Here, WPS’s witness (Sagles) testified that WPS had no ownership, control, or possession of the gate in question or premises where the incident occurred. WPS did not have exclusive control. Plaintiff has not produced any evidence to the contrary.

The incident may well have occurred because of the voluntary action or contribution of the plaintiff.

Therefore, the Court does not find that the doctrine of res ipsa loquitor applies.

Eighth, Plaintiff argues, WPS had a duty to warn him about “enter[ing] the subject area” (Opposition, p. 6:1-2) and the “subject gate arm …” (Opposition, p. 4:18-20). Plaintiff argues that the “lack of installation of any warning signage, separation, or obstruction between the barrier/gate arm and the pedestrian egress path adjacent to the vehicular exit causes pedestrians to veer along the path of the vehicular exit gate arm.” (Opposition, p. 5:14-17.) “[A]ccording to the Operating Instructions, the barrier/gate arm is not approved for pedestrian traffic nor was it during Defendant WPS’s installation. This is further evidence of Defendant WPS’s responsibility to install warning signage, clear separation, or obstruction between the barrier/gate arm and the pedestrian path of egress.” (Opposition, p. 5:17-21.)

“Generally speaking, manufacturers have a duty to warn consumers about the hazards inherent in their products.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.) “The requirement's purpose is to inform consumers about a product’s hazards and faults of which they are unaware, so that they can refrain from using the product altogether or evade the danger by careful use.” (Ibid.) “Typically, under California law, we hold manufacturers strictly liable for injuries caused by their failure to warn of dangers that were known to the scientific community at the time they manufactured and distributed their product.” (Ibid.)

Here, WPS has produced uncontradicted evidence that it did not manufacture the gate/barrier, but only installed it. Therefore, it would not be WPS’s responsibility to warn Plaintiff of hazards and faults inherent in the barrier/gate arm.

Granted, duty to warn does not only arise in the manufacturer-consumer context as discussed below.

“‘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 (“Hassaine”).)

“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 p. 851.)

“Courts depart from this general rule only where [1] a statute creates an exception, or [2] the policy considerations articulated in [Rowland v. Christian (1968) 69 Cal.2d 108 (“Rowland”)] require the courts to create one.” (Hassaine, supra, 77 Cal.App.5th at p. 851; Rowland, supra, 69 Cal.2d at pp. 112–113 [“A departure from this fundamental principle involves the balancing of a number of considerations; the major ones are [1] the foreseeability of harm to the plaintiff, [2] the degree of certainty that the plaintiff suffered injury, [3] the closeness of the connection between the defendant's conduct and the injury suffered, [4] the moral blame attached to the defendant's conduct, [5] the policy of preventing future harm, [6] the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and [7] the availability, cost, and prevalence of insurance for the risk involved”].)

“In considering whether a party has a legal duty in a particular factual situation, a distinction is drawn between claims of liability based upon misfeasance and those based upon nonfeasance.” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202 (“Seo”).) “Misfeasance exists when the defendant is responsible for making the plaintiff's position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention ….” (Ibid. [internal quotations and citations removed].)

Here, there has been no evidence presented of misfeasance. Therefore, the remaining issue is whether there is a triable issue of fact concerning WPS liability for nonfeasance.

The California “Supreme Court … [has] clarified that determining whether to recognize a duty to warn is governed by a two-step inquiry.” (Russell v. Department of Corrections and Rehabilitation (2021) 72 Cal.App.5th 916, 930, reh'g denied (Jan. 13, 2022), review denied (Mar. 9, 2022) (“Russel”) [emphasis added].)

“‘First, the court must determine whether there exists a special relationship between the parties or some other set of circumstances giving rise to an affirmative duty to [warn].’” (Russel, supra, 72 Cal.App.5th at p. 930.) Indeed, while, “[l]iability for misfeasance is based on the general duty of ordinary care to prevent others from being injured by one's conduct,” the “[l]iability for nonfeasance is limited to situations in which there is a special relationship that creates a duty to act.” (Seo, supra, 97 Cal.App.4th at p. 1202.)

If a special relationship exists, the second step is for “the court [to] … consult the factors described in [Rowland] to determine whether relevant policy considerations counsel limiting that duty.” (Russel, supra, 72 Cal.App.5th at pp. 930-931.)

In Seo, “[a] subtenant of commercial premises was injured when his arm was caught in a remote-controlled electronic sliding gate as he manually operated a toggle switch.” (Seo, supra, 97 Cal.App.4th at p. 1197.)

“The subtenant sued a gate repair company that had undertaken occasional as-needed repairs to the gate.” (Seo, supra, 97 Cal.App.4th at p. 1197.)

“The gate repair company moved for summary judgment on the ground it owed no duty to the subtenant to advise the owner of the property of design defects of the gate, unrelated to the repairs undertaken by the gate repair company.” (Seo, supra, 97 Cal.App.4th at p. 1197.)

The trial court granted the gate repair company’s motion for summary judgment and, subsequently, entered judgment in the defendant’s favor. (Seo, supra, 97 Cal.App.4th at p. 1200.) Plaintiff appealed. (Ibid.)

On appeal, the “[p]laintiff contend[ed] [that the gate repair company] was negligent in failing to inform the owner of the property that the sliding gate/toggle switch combination was defectively designed, and in failing to suggest safety measures that would have prevented the accident, such as installation of wire mesh and relocation of the toggle switch.” (Seo, supra, 97 Cal.App.4th at p. 1202.) “Defendant respond[ed] that it owed no duty to the owner of the property to advise of design defects or potential safety measures unrelated to its repair work.” (Ibid.)

The Court of Appeal determined that the plaintiff’s action against the gate repair company “constitute[d] classic nonfeasance,” because he was alleging “that defendant gate repair company failed to take action to warn of or correct a dangerous design defect of the sliding gate/toggle switch combination.” (Seo, supra, 97 Cal.App.4th at p. 1203.) “Accordingly, [the] defendant owed no duty to [the] plaintiff in the absence of a special relationship.” (Id. at p. 1204.)

The Court of Appeal found that a special relationship giving rise to a duty between the plaintiff and the gate repair company would arise “if: (1) the repairer negligently performs the repair causing the third party's injury; (2) the repairer negligently fails to make a requested repair causing the third party's injury; (3) the repairer has contracted with the owner to inspect and maintain the equipment and fails to do so or to do so properly; or (4) the repairer has voluntarily assumed the owner's duty to inspect and maintain the safety of the equipment or undertaken a systematic inspection of the equipment and fails to do so or to do so properly.” (Seo, supra, 97 Cal.App.4th at p. 1206 [emphasis added].) Since there was no evidence that the gate repair company engaged in any of those activities, there was no special relationship giving rise to a duty between the parties. (Id. at pp. 1204-1206.) Therefore, the Court of Appeal affirmed the summary judgment. (Id. at p. 1207.)

Here, there is no evidence that WPS (1) negligently performed a repair of the gate, (2) failed to make a requested repair, or (3) voluntarily assumed the owner’s duty to inspect and maintain the safety of the gate/barrier equipment or to undertake a systematic inspection of the question and failed to do so properly.

Therefore, the remaining question is whether WPS contracted with PCAM to inspect and maintain the gate/barrier. If the answer is yes, then a special relationship giving rise to a duty to warn would exist between WPS and the Plaintiff.

“A special relationship may arise out of a contract in which a repair company agrees for a fee to keep a piece of equipment in repair, perform all work necessary for the safety and maintenance of the equipment, and make periodic inspections of the equipment.” (Seo, supra, 97 Cal.App.4th at p. 1204.)

Here, Plaintiff implies, WPS could not have made service calls to PCAM, if the defendants did not have some sort of agreement. He argues that Sagles contradicts his own testimony by testifying that “WPS was not under any scheduled maintenance agreement with Dignity Health for the barrier gate prior to the incident involving Plaintiff” (Sagles Decl., ¶ 10), while also admitting that WPS made “several service calls” (Sagles Decl., ¶ 11). (Opposition, pp. 6:27-7:4.)

In Seo, the Court of Appeal found that a special relationship arising out a contract did not exist between the plaintiff and the gate repair company. The evidence was undisputed that the gate repair company never entered into an maintenance contract (written or otherwise) with the owner of the property. (Seo, supra, 97 Cal.App.4th at p. 1204.) In addition, even though the owner called the gate repair company “to work at the property on an as-needed basis,” and some calls involved the entry gate, “each of the calls was to make specific repairs,” the “[d]efendant made the requested repairs,” and “[n]one of those requested repairs caused plaintiff’s injuries. (Ibid.) “Neither the frequency of the repair calls nor the inspection of the potentiometer [gave] rise to an inference of an implied contract between the owner of the property and defendant to regularly inspect and maintain the gate.” (Ibid.)

Here, like in Seo, there is no evidence of a contractual duty. There is no evidence that WPS agreed (for a fee) to keep the gate/barrier in repair, perform all work necessary for the safety and maintenance of the equipment, and make periodic inspections of the equipment. Further, as the Court of Appeal held in Seo, the frequency of repair calls and the inspection of equipment does not give rise to an inference of an implied contract between the owner of the property and the defendant to regularly inspect and maintain the gate. Most importantly, even if WPS repaired the gate/barrier “several” times, there is no evidence that it was negligent in those repairs or that its work caused the Plaintiff’s injuries.

There are other forms of recognized special relationships that give rise to a duty. For example, relationships between “‘landowner or possessor and person coming on the land; manufacturer or supplier of goods and buyer or user; vendor, lessor, or contractor and purchaser, lessee or owner of real property.’ [Citation.]” (Seo, supra, 97 Cal.App.4th at p. 1203.) Others include relationships between common carriers and passengers, innkeepers and guests, a person who is required by law (or who voluntarily takes) custody of another and the person who is under custody, “psychotherapists and patients; law enforcement and particular members of the public; parties with a relationship of dependence; proprietors of bowling alleys, restaurants, apartment houses, and hospitals and their customers; and school districts and students.” (Ibid.)

Here, the parties have neither argued nor presented evidence showing that they fall under any of the above categories of special relationships.

Accordingly, since a duty to warn cannot arise absent a special relationship, Plaintiff’s argument that WPS should have warned him fails.

For the reasons set forth above, the Court finds that WPS has met its burden of showing that Plaintiff’s negligence and premises liability claims have no merit by showing that the elements (e.g., duty, breach, and causation) for those causes of action cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).) Plaintiff has failed to raise a triable issue of one or more material facts exists as to his premises liability and negligence claims. (Code Civ. Proc., § 437c, subd. (p)(2).) Summary judgment is proper.

Plaintiff Arthur Martinez’s complaint against Defendant WPS USA Corp. dba WPS Parking Systems USA Corp. is dismissed without prejudice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Kerry Bensinger

Judge of the Superior Court

[1] The Court notes that the cover page of the exhibit that allegedly contains Avila’s deposition transcript, is titled “Videoconference Deposition of Javier Aviles [“Aviles”]…,” not Juan Avila. (Declaration of Anthony Werbin, filed on January 3, 2023 (“Werbin Decl.”), Exhibit 3 (“Avila Depo”).) However, in light of Plaintiff’s counsel’s declaration that the Exhibit is deposition transcript of Juan Avila (“Avila”) (Werbin Decl., ¶ 3), the Court assumes that Avila and Aviles are the same person.