Judge: Lisa R. Jaskol, Case: 21STCV40954, Date: 2024-12-11 Tentative Ruling
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Case Number: 21STCV40954 Hearing Date: December 11, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
A. Prior proceedings
On November 8, 2021, Plaintiff Maria I. Rojas (“Plaintiff”) filed this action against Defendants Bre Encino Owner LLC (“Bre Owner”), Bre Imagination Pooled Retail II LLC (“Bre Retail”), The Whiting-Turner Contracting Company (“Whiting”), and Does 1-50 for general negligence and premises liability.
On April 6, 2022, Whiting filed an answer and a cross-complaint against Cross-Defendants Roes 1-100 for implied indemnity, contribution, and declaratory relief. On July 29, 2024, the Court granted Whiting’s motion for a good faith settlement determination.
On April 27, 2022, Bre Owner and Bre Retail filed an answer. On January 26, 2023, Bre Owner and Bre Retail (“Bre Entities”) filed a cross-complaint against Cross-Defendants Allied Universal Risk Advisory and Consulting Services, Inc., Andrew International, Inc., and Roes 1-25 for equitable indemnity, equitable apportionment, contribution, express indemnity, and declaratory relief. On March 8, 2023, Bre Entities amended the cross-complaint to include Cross-Defendant Universal Protection Service, LP, as Roe 1.
On April 14, 2023, Cross-Defendant Universal Protection Service, LP dba Allied Universal Security Services (erroneously sued as Allied Universal Risk Advisory and Consulting Services, Inc. and Andrew International, Inc.) (“Allied”) filed an answer.
On October 21, 2024, the Court granted Allied’s motion for summary adjudication of the claims for equitable indemnity, equitable apportionment, contribution, and declaratory relief contained in Bre Entities’ cross-complaint. The Court denied Allied’s motion for summary judgment or, in the alternative, summary adjudication of the claim for express indemnity contained in Bre Entities’ cross-complaint.
Trial is set for January 17, 2025.
B. This motion
On April 8, 2024, Bre Entities filed a motion for summary judgment. The motion was set for hearing on December 11, 2024. On November 22, 2024, Plaintiff filed an opposition. On December 5, 2024, Bre Entities filed a reply.
PARTIES’ REQUESTS
Bre Entities ask the Court to grant summary judgment.
Plaintiff asks the Court to deny the motion.
PLAINTIFF’S REQUEST FOR JUDICIAL NOTICE
Granted:
3, 4, 5
Denied:
1, 2, 6, 7
PLAINTIFF’S EVIDENTIARY OBJECTIONS
Overruled: All
BRE ENTITIES’ EVIDENTIARY OBJECTIONS
Overruled:
1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14
Sustained:
4
LEGAL STANDARD
A. Summary judgment
“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar)) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)
When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action. (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855, original emphasis.)
“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)
In addition, a party moving for summary judgment must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1).) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).) If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)
In ruling on the motion, the court must consider all the evidence and all the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.)
B. Premises liability and negligence
“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.)
“ ‘ “Generally, one owes a duty of ordinary care not to cause an unreasonable risk of harm to others....” ' [Citation.]” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 411 (Salinas), quoting Padilla v. Rodas (2008) 160 Cal.App.4th 742, 747 (Padilla).) “ ‘Civil Code section 1714 sets forth the general duty of a property owner toward others: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” The application of this provision entails an inquiry as to “whether in the management of his property he has acted as a reasonable [person] in view of the probability of injury to others....” [Citations.]’ ” (Id. at pp. 411-412, quoting Laico v. Chevron U.S.A., Inc. (2004) 123 Cal.App.4th 649, 659 (Laico).) “A landowner ‘ “ ‘has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition. And if, by the exercise of reasonable care, he would have discovered the dangerous condition, he is liable.’ ” ’ [Citation.]’ ” (Id. at p. 412, quoting Portillo v. Aiassa (1994) 27 Cal.App.4th 1128, 1134.)
“ ‘An exception to the statutory rule of liability for failure to use ordinary care in the management of one's property requires clear support in public policy.’ ” (Salinas, supra, 166 Cal.App.4th at p. 412, quoting Laico, supra, 123 Cal.App.4th at pp. 659–660.) “ ‘ “In the case of a landowner's liability for injuries to persons on the property, the determination of whether a duty exists, ‘involves the balancing of a number of considerations; the major ones are the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.’ [Citations.]” [Citation.]’ ” (Ibid., quoting Rinehart v. Boys & Girls Club of Chula Vista (2005) 133 Cal.App.4th 419, 430.) “ ‘Foreseeability and the extent of the burden to the defendant are ordinarily the crucial considerations, but in a given case one or more of the other Rowland factors may be determinative of the duty analysis.’ ” (Ibid., quoting Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213.) “The existence and scope of a defendant's duty is a question of law for the court's resolution.” (Ibid., citing Shin v. Ahn (2007) 42 Cal.4th 482, 488; Padilla, supra, 160 Cal.App.4th at p. 747.)
C. Open and obvious conditions
“As a general rule, an owner or possessor of land owes no duty to warn of obvious dangers on the property.” (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126.) “There is no duty to warn of an obvious danger but the possessor of land does have a duty to warn an invitee not only of conditions known by him to be dangerous but also of conditions which might have been found dangerous by the exercise of ordinary care. [Citation.] The invitor may assume that an invitee will perceive that which would be obvious to him through the ordinary use of his senses. [Citation.]” (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27.)
“Foreseeability of harm is typically absent when a dangerous condition is open and obvious. [Citation.] ‘Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.’ [Citation.] In that situation, owners and possessors of land are entitled to assume others will ‘perceive the obvious’ and take action to avoid the dangerous condition.” (Montes v. Young Men’s Christian Assn. of Glendale, California (2022) 81 Cal.App.5th 1134, 1140 (Montes), quoting Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447 (Jacobs).)
A defendant may owe a duty of care even where a dangerous condition is open and obvious, “when ‘it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it).’ ” (Montes, supra, 81 Cal.App.5th at p. 1140, quoting Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122 (Osborn).) “In other words, ‘the obviousness of the condition and its dangerousness ... will not negate a duty of care when it is foreseeable that, because of necessity or other circumstances, a person may choose to encounter the condition.’ ” (Ibid., quoting Jacobs, supra, 14 Cal.App.5th at p. 447.)
Courts have found it was foreseeable that a plaintiff would “choose to encounter” an obviously dangerous condition when the plaintiff’s employment required him to walk across an area to complete his work. (Montes, supra, 81 Cal.App.5th at p. 1140, citing Osborn, supra, 224 Cal.App.3d at pp. 109–110, 123; Florez v. Groom Development Co. (1959) 53 Cal.2d 347, 358–359.) In addition, the court in Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1185, “determined there was a practical necessity for the plaintiff to walk across wet pavement because the pavement was the ‘principal if not sole access way from the street to defendant's building, which housed a government office serving the public.’ ” (Ibid., quoting Jacobs, supra, 14 Cal.App.5th at pp. 447–448.)
DISCUSSION
A. Plaintiff’s complaint
The complaint alleges the following:
On December 17, 2019, at 17401 Ventura Boulevard in Encino, California, Defendants Bre Entities, Whiting, and Does 1-50 negligently directed, instructed, and or allowed Plaintiff to walk down an escalator which Defendants, by their negligent acts or omissions, caused and or knew to be stopped. The stopped escalator constituted a dangerous condition because the steps were not uniform, were uneven, and did not comply with California law, creating a fall hazard. The steps posed an unreasonable risk of harm to the elderly Plaintiff. As a result of Defendants’ conduct, Plaintiff was injured.
B. Undisputed facts
Plaintiff contends that she fell while walking down a stopped escalator at the premises located at 17401 Ventura Boulevard, Encino, California 91316 (“premises”). Plaintiff alleges that the stopped escalator constituted a dangerous condition because the stopped steps of the escalator were not uniform, were uneven, and did not comply with California law.
At the time of the accident, Defendant BRE Encino Owner, LLC owned the premises. Bre Entities managed their property through a property management company, Shopcore Properties (“ShopCore”). Bre Entities, through ShopCore, hired Allied to provide on-site services for the premises.
ShopCore’s property manager, Tony Lucero, issued a Memorandum dated May 21, 2018, to Allied that specified “the Encino officer will be responsible for turning off… the single escalator (located in the center of the courtyard)….daily at 2000 hours.” Defendants delegated the task of turning off the escalator to Allied. Shahidul Islam (“Islam”) was Allied’s security officer on the premises.
A hair salon called Butterfly Loft was located on the second floor of the premises. A single, upward moving escalator transported guests from the ground floor/first floor to the second floor. It was Bre Entities’ policy to operate the escalator for customers until 8:00 p.m. There was no escalator that transported guests down from the second floor to the ground floor/first floor.
The accident occurred on December 17, 2019. Plaintiff, age 81, traveled to the premises with her daughter, Paula Rojas, to have her hair cut and colored. Plaintiff and her daughter arrived at the premises at approximately 5:30 p.m. and took the escalator up from the ground floor to the second floor, where the hair salon was located. Plaintiff had never been to the premises before.
As Plaintiff rode the escalator toward the second floor and as she approached the top of the escalator, the height of the steps of the escalator gradually began to decrease until they were flat at the top of the escalator, a fact that Plaintiff was aware of on the date of the accident.
Plaintiff’s granddaughters, Paulina Langton and Brooke Langton, also went to the premises on December 17, 2019 so that Paulina Langton could have her hair done at Butterfly Loft Salon. The granddaughters arrived at the premises before Plaintiff and her daughter and took the escalator to the second floor to go to the salon.
Plaintiff, her daughters, and her granddaughters left the hair salon at the same time, between 7:00 p.m. and 7:15 p.m. The escalator was stopped. Paulina Langton walked down the stopped elevator, followed by Brooke Langton, then Plaintiff’s daughter, and then Plaintiff. Plaintiff’s daughter told Plaintiff to be careful. There was no trash or debris on the steps of the stopped escalator.
After Plaintiff took a few steps, she fell.
C. Bre Entities have not carried their initial burden on summary judgment
Bre Entities argue the Court should grant summary judgment because the elevator was not a dangerous condition; even if it was a dangerous condition, it was open and obvious; and Bre Retail did not own or operate the premises.
Bre Entities have presented evidence that the stopped escalator contained no trash or other debris, other people walked down the stopped escalator without incident, and Plaintiff could see where she was going. Bre Entities also argue that it was not reasonably foreseeable that Plaintiff would walk down the stopped escalator because an elevator on the second floor could have taken Plaintiff to the ground level.
Bre Entities have not, however, presented evidence showing that Plaintiff will be unable to present evidence supporting her contention that the stopped escalator was a dangerous condition. For example, the signage next to the elevator on the premises could support a finding that it was reasonably foreseeable that guests like Plaintiff would attempt to walk down the stopped escalator to descend from the second floor. In addition, Plaintiff can present evidence that the stopped escalator was poorly lit and that its steps were not uniform in size and shape, creating a falling risk.
Similarly, Bre Entities have not shown that Plaintiff will be unable to present evidence supporting her contention that the allegedly dangerous condition was not open and obvious. For example, at her deposition Plaintiff testified that it was “very dark” when she fell and she was not aware that the height on each step of the escalator might be different. In addition, Plaintiff can present evidence that it was foreseeable that she would choose to encounter the dangerous condition because, due to the signage next to the elevator, Plaintiff reasonably believed she had no alternative to using the stopped escalator to descend from the second floor.
Even assuming Bre Entities carried their initial burden of showing Bre Retail did not own or operate the premises, this purported fact would not entitle Bre Entities to summary judgment. (See Code Civ. Proc., § 437c, subd. (c) [“The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”].) Bre Entities have not moved for summary adjudication of issues. (See Code Civ. Proc., § 437c, subd. (f)(1).) Therefore, the Court does not consider this issue.
The Court denies the motion for summary judgment.
CONCLUSION
The Court DENIES the motion for summary judgment filed by Defendants Bre Encino Owner LLC and Bre Imagination Pooled Retail II LLC.
Moving parties are ordered to give notice of this ruling.
Moving parties are ordered to file the proof of service of this ruling with the Court within five days.