Judge Lee S. Arian, Case Number: 19STCV10323, Date: 2023-11-13 Tentative Ruling

On March 26, 2019, plaintiff Adam Becker (“Plaintiff”) initiated this action against defendants Artisanal Brewers Collective, LLC (“ABC”), The Old Chalet, and Bethany McDaniel (“McDaniel’). The complaint alleges the following causes of action: (1) premises liability against ABC and The Old Chalet; (2) negligence against ABC and The Old Chalet; and (3) battery against McDaniel.

On April 12, 2019, ABC and The Old Chalet filed their joint answer to the complaint.

On August 30, 2023, ABC filed the instant motion for summary judgment. On October 30, 2023, Plaintiff filed his opposition to the instant motion for summary judgment. On November 8, 2023, ABC filed its reply papers.

On November 13, 2023, the Court continued the hearing on ABC’s motion for summary judgment to January 3, 2024, and it further instructed ABC to file a fact and legal brief on the issue of obstreperous and aggressive conduct by November 27, 2023. The Court permitted Plaintiff to file a response to this brief by December 18, 2023. In compliance with the Court’s directives, the parties filed their respective briefs on the appropriate dates.

On December 6, 2023, Plaintiff filed a motion for terminating sanctions against Defendant ABC for its failure to preserve and produce complete security video-recordings after being placed on notice of the potential for litigation. Alternatively, Plaintiff seeks the imposition of an issue sanction “that due to ABC’s spoliation of evidence that it be determined in this action that ABC was placed on notice of the potential and imminent threat posed by Defendant McDaniel.” (Notice of Motion re: Sanctions at pg. 2.) As another alternative, Plaintiff requests the Court issue jury instructions pursuant to Evidence Code § 413.

On December 19, 2023, Defendant ABC filed is opposition to Plaintiff’s sanctions motion. Thereafter, on December 26, 2023, Plaintiff filed his reply papers.

Now, the Court shall address in turn Plaintiff’s motion for sanctions and Defendant’s motion for summary judgment.

As alleged in the complaint, Plaintiff was injured by McDaniel, a fellow patron, when she threw a playing dart at Plaintiff, hitting in his left hand and causing injury. (Compl. ¶ 1.) The alleged incident occurred on March 19, 2018 at around 9:45 p.m. on the premises of The Old Chalet. (Ibid.) It is further alleged that the subject premises was in the possession of, owned, and operated by ABC. (Id. at ¶ 8.) Further, “through inaction and a failure to take remedial measures,” ABC allowed the subject premises to become unreasonably unsafe. (Id. at ¶ 14.) Also, ABC failed to employ staff that would monitor the conduct of patrons and to avoid distractions while on the job, and as a result, ABC was negligent in failing to control the conduct of McDaniel before she had an opportunity to injure Plaintiff. (Id. at ¶ 19.)

Code of Civil Procedure § 2023.030 provides for the imposition of certain sanctions where a party engages in conduct constituting the misuse of the discovery process. Among those sanctions the Court may issue are monetary sanctions (subd. (a)), issue sanctions designating certain facts as established (subd. (b)), and evidentiary sanctions limiting matters that may be introduced as evidence (subd. (c)). “The discovery statutes evince an incremental approach to discovery sanctions, starting with monetary sanctions and ending with the ultimate sanction of termination.” (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.) “Discovery sanctions should be appropriate to the dereliction, and should not exceed that which is required to protect the interests of the party entitled to but denied discovery.” (Ibid.)

A decision to order terminating sanctions should not be made lightly.” (Creed-21 v. City of Wildomar (2017) 18 Cal.App.5th 690, 702.) Terminating sanctions are warranted when a party’s lack of compliance with the discovery process has caused the opposing party prejudice. (Doppes v. Bentley Motors, Inc., supra, 174 Cal.App.4th 967, 989.) However, “The trial court cannot impose sanctions for misuse of the discovery process as a punishment.” (Id. at 992.) Rather, any given sanction must be “tailor[ed] to the harm caused by the withheld discovery.” (Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal. App. 4th 27, 36 (superseded by statute on other grounds).) This is because “the purpose of discovery sanctions is not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits, but to prevent abuse of the discovery process and correct the problem presented.” (Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal. App. 4th 285, 301.)

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.)

Defendant ABC objects to various portions of the evidence submitted by Plaintiff in support of his opposition to the instant motion for summary judgment. To the extent that Defendant ABC objects to Plaintiff’s entire declaration on the ground that it is inconsistent with Plaintiff’s prior deposition testimony, the Court overrules this objection.

As to the objections levied to various portions of Plaintiff’s declaration as well as the Declarations of Fred Del Marva and David R. Fisher, the Court declines to rule on these evidentiary objections for failure to comply with the procedural requirements. (Cal. Rules of Court, rule 3.1354(b)-(c) [requirement of two separate documents, i.e., evidentiary objections and a proposed order on those objections]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 9 [trial court not required to give a second chance at filing properly formatted papers].) In any event, the subject portions that amount to improper legal opinion do not have persuasive effect in a declaration. (Code Civ. Proc., § 437c, subd. (q).)

As stated above, it is within the Court’s discretion to impose sanctions pursuant to Code of Civil Procedure § 2023.030 where there is a misuse of the discovery process. One form of misusing the discovery process is the spoliation of evidence, and this can include the failure to preserve evidence for pending or future litigation. (See Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 681.) A terminating sanction is appropriate in the first instance without a violation of prior court orders in egregious cases of intentional spoliation of evidence. (Williams v. Russ (2008) 167 Cal. App. 4th 1215, 1227 [citing R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 497].)

Plaintiff first contends that terminating sanctions are warranted because Defendant ABC willfully engaged in spoliation by destroying video evidence despite its duty to preserve such evidence. (Motion re: Sanctions at pg. 9.) Plaintiff bases this assertion on the fact that only 22 minutes of surveillance footage was actually produced. Plaintiff reasons that he has been prejudiced because the missing surveillance footage would have been important in establish the element of duty. (Motion re: Sanctions at pp. 3-4, 13-14.) However, under the circumstances, the Court does not find that the evidence submitted supports the imposition of terminating sanctions. While only 22 minutes of footage was preserved, it depicted the events nearest to the time that Plaintiff’s injuries had occurred. Preservation of this footage would have been in line with Plaintiff’s initial March 21, 2018, email request seeking corroborating evidence to support his claim of medical expenses and loss income against Defendant McDaniel. (Becker Decl., Exh. 2.) Thus, Plaintiff relies on conjecture in claiming that the remainder of the footage contained compromising information and Defendant ABC intentionally allowed this evidence to be destroyed. Thus, this is not an instance of egregious conduct that would support terminating sanctions. (See Williams, supra, 167 Cal. App. 4th at 1227.) Furthermore, the Court recognizes that a terminating sanction is a "drastic measure which should be employed with caution." (Deyo, supra, 84 Cal.App.3d at p. 793.) Such a sanction is not warranted based on the facts presented.

Moreover, California’s appellate court has recognized that a non-monetary sanction is usually best decided by the trial court. “A party moving for discovery sanctions based on the intentional destruction of evidence could argue that the mere fact that the evidence no longer exists supports an inference of intentional spoliation. Rather than decide the facts with respect to the intentional destruction of evidence and impose a nonmonetary sanction on a pretrial motion in circumstances not contemplated by the discovery statutes, we believe that in most cases of purported spoliation the facts should be decided and any appropriate inference should be made by the trier of fact after a full hearing at trial.” (New Albertson's, Inc. v. Superior Court (2009) 168 Cal.App.4th 1403, 1431. Accordingly, with regard to Plaintiff’s request for jury instructions pursuant to Evidence Code § 413, the Court denies that request without prejudice to raise it with the trial court.

Defendant ABC moves for summary judgment solely on the ground that Plaintiff is unable to establish the element of duty to support the first and second causes of action for premises liability and negligence. (Motion at pg. 2.)

The elements of a premises liability and negligence cause of action are the same: duty, breach, causation and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

While an owner of premises is not an insurer of the safety of its patrons, the owner still owes them a duty to exercise reasonable care in keeping the premises reasonably safe. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) In the context of where the owner of the premises serves intoxicating drink, a special relationship may exist to establish a duty under certain circumstances, and in such situations, the owner must “exercis[e] reasonable care to protect his patrons from injury at the hands of fellow guests” (Saatzer v. Smith (1981) 122 Cal. App. 3d 512, 518.) Such a duty exists when the one or more of following circumstances are present:

“ ‘ (1) A tavern keeper allowed a person on the premises who has a known propensity for fighting; (2) the tavern keeper allowed a person to remain on the premises whose conduct had become obstreperous and aggressive to such a degree the tavern keeper knew or ought to have known he endangered others; (3) the tavern keeper had been warned of danger from an obstreperous patron and failed to take suitable measures for the protection of others; (4) the tavern keeper failed to stop a fight as soon as possible after it started; (5) the tavern keeper failed to provide a staff adequate to police the premises; and (6) the tavern keeper tolerated disorderly conditions [citations].’ ”

(Saatzer, supra, 122 Cal. App. 3d at p. 518; see also Slawinski v. Mocettini ¿(1963) 217 Cal. App. 2d 192, 196.)

Here, Defendant ABC argues that none of the above circumstances were present at the time in which Plaintiff sustained his injuries from McDaniel. (Motion re: MSJ at pg. 7.) It relies on the following facts for this argument: On March 19, 2018, Defendant ABC employed Amy Allen to work as a bartender and Sean Courtney to work as a doorman. (UMF Nos. 3, 4; Howard Decl. ¶¶ 5, 9; Exh. C, Allen Depo at pp. 34:24-35:10; Exh. G, Courtney Depo at pg. 36:21-23.) ABC claims that it was a “slow night” for Ms. Allen at the subject premises. (UMF No. 4; Howard Decl. ¶ 5, Exh. C, Allen Depo. at pp. 87:24-88:6.) Plaintiff arrived at the subject premises around 9:00 p.m. on March 19, 2018, and after twenty minutes, he played darts with McDaniel for roughly thirty minutes prior to the subject incident. (UMF Nos. 6, 8-9, Howard Decl. ¶ 8; Exh. F, Becker Depo at pp. 33:17-34:2, 36:9-23, 38:17-21.) Prior to the subject incident, Defendant ABC’s employees had not seen McDaniel start a fight and have never received complaints regarding McDaniel’s behavior. (UMF Nos. 10-11; Howard Decl. ¶¶ 5-7; Exh. C, Allen Depo at pp. 41:23-42:11, 48:10-13, 106:7-13; Exh. D, Johnston Depo at pp. 83:21-84:20, 87:17-25; Exh. E, Sigsby Depo at pg. 58:7-16.) Plaintiff did not notify one of ABC’s employees regarding McDaniel’s behavior, and Ms. Allen did not perceive McDaniel to be intoxicated or that she was playing darts in an unsafe manner. (UMF Nos. 12-15; Howard Decl. ¶¶ 5, 8; Exh. C, Allen Depo at pp. 54:12-55:2, 58:5-8; 58:21-23, 103:20-23, 106:7-13, 108:25-109:3, 111:1-3, 111:25-112:3; Exh. F, Becker Depo at pp. 39:5-17, 153:22-154:9.)

Defendant ABC argues that this evidence show that Plaintiff is unable to establish one of the six factors set forth in Saatzer. (Motion at pg. 7.) It ocntends the evidence does not show that McDaniel was known to instigate fights and there is no history of McDaniel behaving disorderly. (Motion at pp. 7-8.) ABC further reasons that it or its employees had no reason to know about the interactions between Plaintiff and McDaniel because Plaintiff did not complain to Ms. Allen before the incident occurred. (Motion at pg. 8.) Thus, there was no reason to believe McDaniel was acting disorderly or aggressive with Plaintiff. Moreover, Defendant ABC contends that there is no evidence to suggest a fight occurred for its employees to stop. (Ibid.) Furthermore, Defendant ABC asserts that adequate staff were in place to police the subject premise and its employees did not tolerate any disorderly conduct on the night of the incident. (Motion re: MSJ at pg. 9.)

Also, in compliance with the Court’s order on November 13, 2023, Defendant ABC has filed a supplemental brief on the issue of obstreperous and aggressive behavior. Effectively, Defendant ABC equates “obstreperous and aggressive” to denote violent, criminal or vicious behavior. (ABC’s Supplemental Brief at pg. 7.) In support of this reasoning, Defendant ABC relies on various cases such as Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224 and Morris v. De La Torre (2005) 36 Cal. 4th 260. In Delgado, a small group of patrons and a plaintiff were staring occasionally at each other during the course of 90 minutes until the plaintiff became uncomfortable and decided to leave. (Delgado, supra, 36 Cal.4th at pg. 231.) Prior to leaving, the plaintiff’s wife expressed concern to a security guard that there was going to be a fight, and the security guard had independently observed the hostile stares, believing that a fight was imminent. (Ibid.) Upon leaving, plaintiff was followed and eventually attacked by a now larger group of men. (Ibid.) It was only after the attack that an employee at the bar dialed 911 to request police intervention. (Id. at pg. 232.) Ultimately, the California Supreme Court concluded that the defendant owed plaintiff a duty because it had actual notice of an imminent assault, and as a result, defendant was obligated to “take reasonable, relatively simple, and minimally burdensome steps to attempt to avert that danger.” (Id. at pg. 250.)

In Morris, the plaintiff and his companions were confronted in a hostile manner and attacked by two gang members while they were at a 24-hour restaurant at 1:00 am. (Morris, supra, 36 Cal. 4th at pg. 266.) During the altercation, one of the gang members entered the restaurant’s kitchen and grabbed a knife without intervention from the employees. (Ibid.) The restaurant employees then witnessed the plaintiff be stabbed, and eventually, one of plaintiff’s companions dialed 911 from a pay phone near the restaurant. Similarly, as in Delgado, the Supreme Court determined that the restaurant had a duty to take appropriate measures such as dial 911 while criminal conduct is occurring at its premises. (Id. at pg. 270.)

Upon review of the evidence submitted and the supplemental briefing, the Court finds that Defendant ABC has not submitted sufficient evidence to show that there is no triable issue of material fact as to whether ABC owed a duty to Plaintiff in order to ensure his safety. While ABC attempts to argue that Plaintiff lacks evidence to show that ABC or its employees were aware that McDaniel was obstreperous, this is undermined by Ms. Allen’s own deposition testimony. Primarily, Ms. Allen testified that it was a slow night that evening. (Id. at pp. 87:24-88:6) and she only learned about the incident from a co-worker who was not present at the subject premises on the night of the incident (Howard Decl. ¶ 5; Exh C., Allen Depo at pp. 54:12-55:2.) In viewing this evidence in the light most favorable to Plaintiff, the inference drawn from these statements show that Ms. Allen was not paying attention to the interaction between Plaintiff and McDaniel. As a result, there are questions of whether ABC provided adequate staff to police the premises, allowed McDaniel to stay on the premises even when it should have known McDaniel’s behavior endangered others, and tolerated disorderly conditions. Thus, there is an issue of material fact as to whether a special relationship existed between ABC and Plaintiff pursuant to the factors set forth in Saatzer.

Moreover, the Court is not persuaded by Defendant ABC’s briefing. In fact, the Delgado case, though it resulted in violent conduct, demonstrates how certain non-violent conduct can put a bar on notice. In Delgado, the defendant bar owner’s security guard was cognizant that the frequent, hostile stares between the plaintiff and other patrons might erupt into a fight between the groups. (Delgado, supra, 36 Cal.4th at 231.) It was, thus, hostile stares, not violence that put the bar on notice of a potential problem. Here, the conduct of McDaniel, including allegedly throwing darts at the floor (one of which bounced and struck Plaintiff’s foot), taking Plaintiff’s hat off of his head and his eyeglasses off of his face over his objections, licking his eyeglasses, tussling her hair repeatedly, grabbing at other patrons, and flashing her brassiere, was arguably enough to put ABC on notice that her conduct needed to be closely monitored and perhaps curtailed (such as prohibiting her from playing darts). At the very least, that is an issue the jury should decide.

The Court declines the adopt this narrow construction of “obstreperous and aggressive.” After all, as discussed in Slawinski v. Mocettini (1963) 217 Cal.App.2d 192, “[i]t is a subject of common knowledge that the consumption of a procession of drinks of intoxicating liquors produces a variety of reactions in the deportment of human beings, the development of which emotions the tavern keeper should be reasonably alert to detect. It is the policy of the law, both statutory and decisional, to protect the public from the social consequences of intoxicating liquor.” (Id. at pg. 197.) Due to these variety of reactions, “obstreperous and aggressive” behavior does not have to be limited to overt violent behavior.

For the foregoing reasons, Plaintiff Adam Becker’s Motion for Terminating Sanctions is DENIED with prejudice; his request for a jury instruction regarding spoliation of evidence is DENIED WITHOUT PREJUDICE.

Defendant Artisanal Brewers Collective, LLC’s Motion for Summary Judgment is DENIED.

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 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. Lee S. Arian

Judge of the Superior Court