Judge Kerry Bensinger, Case 21STCV36566 2023-03-09 Tentative Ruling

¿¿CAROLYN L. MEYER¿,

Plaintiff,

vs.

¿¿JOSEPH RIGGIO, et al.¿,

Defendants.

)

CASE NO.: ¿21STCV36566¿

[TENTATIVE] ORDER RE: ¿DEFENDANT JOSEPH RIGGIO’S¿ MOTION FOR SUMMARY JUDGMENT

Dept. 27

1:30 p.m.

¿¿March 9¿, 2023

On October 4, 2021, plaintiff Carolyn L. Meyer (“Plaintiff”) filed this action against defendants Joseph Riggio (“Defendant”) and Widowed Friendship Group (“WFG”). Plaintiff alleges that on July 17, 2021, she was at WFG’s meeting when Riggio tripped over the threshold of the sliding glass door, lost his balance, and fell onto Plaintiff, causing her to fall to the floor and sustain injuries. WFG was dismissed from the case on January 31, 2023, after reaching a settlement with Plaintiff.

II. FACTUAL BACKGROUND

On July 17, 2021, Plaintiff and Defendant attended a meeting of the Widowed Friendship Group (“WFG”). (Plaintiff’s Statement of Undisputed Fact (“PSUF”) No. 1.) The WFG is a social gathering organization for widows and widowers. (PSUF No. 3.) Plaintiff and Defendant were members of the WFG at the time of the incident. (PSUF No. 2.) When joining WFG, Plaintiff signed an application containing a section titled “Liability Waiver”. (PSUF No. 3.)

The WFG meeting took place in the clubhouse of a WFG member’s townhouse complex. (PSUF No. 8.) The clubhouse has one entrance with sliding glass doors. (PSUF No. 9.) The path to the clubhouse consists of an outdoor walkway to a set of stairs up to a landing in front of the sliding glass doors. (PSUF No. 10.) The sliding glass doors have a raised track that is a couple of inches high. (PSUF Nos. 11, 12.)

Plaintiff was standing at a table with her back to the sliding glass door when Plaintiff was hit from behind and thrown to the ground. (PSUF Nos. 22, 24, 25.) Defendant admits he tripped and fell into Plaintiff. (PSUF No. 26.) At the time Defendant tripped and fell, he was carrying a box that obscured his view of the raised track. (PSUF Nos. 32-33, 43-46.)

III. LEGAL STANDARDS

Summary Judgment

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia 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).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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 may not merely rely on 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.” (Ibid.) “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.)

Negligence

The elements of negligence are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

IV. EVIDENTIARY OBJECTIONS

Plaintiff submits twenty-seven objections to the Declaration of Armen A. Avakian, filed in support of Defendant’s motion. The declaration sets forth statements that are not based upon personal knowledge. (Evid. Code, § 1200.) Therefore, the objections are sustained.

Plaintiff also submits two objections to the Declaration of Suzanne M. Harrison. The objections are overruled.

Plaintiff requests the Court take judicial notice of (1) Defendant’s motion for summary judgment (Ex. N), and (2) Defendant’s Amended Answer to Plaintiff’s Complaint (Ex. O). The unopposed requests are granted. (Evid. Code, § 452, subds. (c) and (d).)

VI. DISCUSSION

As framed by the Complaint, Plaintiff alleges she was injured by Defendant while attending a WFG meeting on July 17, 2021. Plaintiff alleges Defendant was delivering catered food in a large box which obscured his vision, caused him to trip, lose his balance, and fall onto Plaintiff.¿

Defendant argues he is entitled to summary judgment because (1) Plaintiff signed a valid and enforceable liability waiver and (2) Plaintiff does not have any evidence to establish that Defendant acted negligently.

Liability Waiver

Defendant argues that Plaintiff signed a liability waiver that bars this action against Defendant. Plaintiff signed the liability waiver when joining the WFG on January 10, 2020, and once more when she renewed her WFG membership on December 15, 2020. (PSUF Nos. 57, 58; Harrison Decl., ¶¶ 2-3, Ex. C.) The waiver states in relevant part:

Attendance at any WFG activity, or in conjunction with any such activity, is entirely voluntary. As such, attendance and/or participation constitutes accepting this waiver of any potential legal action for damages to persons or property. This means attendance and/or participation waives all right to bring suit or claims against the WFG group, persons, and/or the WFG group.

(PSUF Nos. 57, 58; Harrison Decl., Ex. C.)

Plaintiff does not dispute having signed the waiver. Rather, she argues that (1) the waiver precludes actions for passive negligence and not active negligence because the word “negligence” does not appear in the waiver; (2) the waiver is unenforceable because the incident was unrelated to the purpose of the waiver; and (3) the waiver does not explicitly release Defendant from liability.

“For an agreement to be construed as precluding liability for ‘active’ or ‘affirmative’ negligence, there must be express and unequivocal language in the agreement which precludes such liability. [Citations.] An agreement which seeks to limit generally without mentioning negligence is construed to shield a party only for passive negligence, not for active negligence. [Citations.]” (Salton Bay Marina, Inc. v. Imperial Irrigation Dist. (1985) 173 Cal.App.3d 914, 933.)

Here, the liability waiver at issue does not expressly and unequivocally preclude liability for “active” or “affirmative” negligence. Defendant concedes the point, but argues Plaintiff cannot present any evidence to show Defendant was actively negligent. In support, Defendant points to Plaintiff’s deposition wherein she testifies having her back turned to Defendant at the time of the incident, not seeing him fall, not knowing why or what caused him to fall, and not knowing of any persons who witnessed the incident. (Meyer Depo., 93:14-25; 94:1-4; 120:1-10.) Defendant also cites to his own deposition wherein he testifies that he saw where he was going, observed the raised track of the sliding door, and deliberately stepped over the track with his lead foot. (Riggio Depo., 20:18, 23:21-25, 22:4-6, 24:3-8.) Defendant stated that the box he was carrying did not impede his vision until he was directly over the track.

“Passive negligence is found in mere nonfeasance, such as the failure to discover a dangerous condition or to perform a duty imposed by law. [Citations.] Active negligence, on the other hand, is found if an indemnitee has personally participated in an affirmative act of negligence, was connected with negligent acts or omissions by knowledge or acquiescence, or has failed to perform a precise duty which the indemnitee had agreed to perform. [Citations.] The crux of the inquiry is to determine whether there is participation in some manner by the person seeking indemnity in the conduct or omission which caused the injury beyond the mere failure to perform a duty imposed upon him by law. Whether conduct constitutes active or passive negligence depends upon the circumstances of a given case and is ordinarily a question for the trier of fact; active negligence may be determined as a matter of law, however, when the evidence is so clear and undisputed that reasonable persons could not disagree. [Citation.]” (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 629, citations and quotations omitted.)

Here, the evidence is not so clear and undisputed that reasonable persons could not disagree. A reasonable jury might conclude that Defendant was “personally participating in an affirmative act of negligence” constituting “active” negligence because Defendant carried a box which obscured his vision as he walked over and tripped on the raised track and fell onto Plaintiff. As Plaintiff points out, Defendant was directly connected to the allegedly negligent act.

Moreover, Defendant had been to the clubhouse before the July 17, 2021 meeting. (Plaintiff’s Evidence, Ex. B, Riggio Depo., 10:4-11, 10:21-11:4.) He was likely aware of the raised track yet attempted to pass through the glass doors on the day in question while carrying a box that obscured his vision. Defendant fails to carry his initial burden to show no triable issue of material fact exists.

Lack of Evidence

Defendant next argues Plaintiff has no evidence that Defendant acted negligently. As above, Defendant cites to Plaintiff’s testimony and his own. (Meyer Depo., 93:14-25; 94:1-4; 120:1-10; Riggio Depo., 20:18, 23:21-25, 22:4-6, 24:3-8.) Further, Defendant argues this is a case of an unavoidable accident without any resulting legal liability. For this proposition, Defendant cites Sherillo v. Stone & Webster Engineering Corp. (1952) 110 Cal.App.2d 785 and Abney v. Coalwell (1962) 200 Cal.App.2d 892. In Sherillo, the Court of Appeal found the trial court did not err in giving the jury instruction that an unavoidable accident is one that occurs without having been proximately caused by negligence. In Abney, a case involving a child who ran in front of a moving vehicle and died from the resulting injuries, the Court of Appeal upheld a jury verdict in favor of the driver because the evidence showed the driver had no way of seeing the child.

In opposition, Plaintiff points out it is not clear which elements of negligence Defendant seeks the Court to summarily adjudicate. However, Plaintiff contends the basic facts of the case and Defendant’s testimony provides sufficient evidence to show Defendant had a duty to use ordinary care when he carried the box over the threshold, breached that duty when he attempted to clear the threshold while carrying a box which he knew obstructed his vision, and caused Plaintiff injury when he fell on her. This is not a case of an unavoidable accident.

“Negligence is the failure to use reasonable care to prevent harm to oneself or to others. A person can be negligent by acting or by failing to act. A person is negligent if that person does something that a reasonably careful person would not do in the same situation or fails to do something that a reasonably careful person would do in the same situation.” (CACI No. 401.)

Here, Defendant testified being able to see where he was walking and that “when he got by the track, … [he] couldn’t see through the box at that point …” (Plaintiff’s Evidence, Ex. B. Riggio Depo., 21:2-12.) The plain inference is Defendant attempted to walk over the raised track while his vision was obscured by the box of food. The trier of fact could conclude a reasonably careful person would not attempt to walk over a tripping hazard, carrying a box that obscured his vision. Such an attempt could constitute a breach of a duty to use care when walking or stepping. (See, e.g., Persson v. James Griffiths & Sons (1948) 85 Cal.App.2d 672, 678-9 (finding jury instruction that plaintiff “was under the duty of being ever watchful of where he was walking or stepping” was not given erroneously in deciding whether plaintiff who suffered workplace injuries from a fall was contributorily negligent).) For this reason, Defendant’s reliance on Sherillo and Abney is misplaced.

The Court cannot conclude as a matter of law that this is a case consisting of an unavoidable accident. Defendant had multiple alternatives to avoid tripping over the raised track. He could have put down the box; not carried the box; asked someone else to carry the box, entered a different way; and so forth. Here, there is a triable issue of material facts regarding Defendant’s breach of his duty to use reasonable care when walking over the raised track when he chose to carry a box that obscured his vision. Further, there is no evidence Plaintiff acted in a manner that made her injury unavoidable. Defendant fails to carry his initial burden.

The motion for summary judgment is DENIED.

Moving party to give notice.

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.