Judge: Lynne M. Hobbs, Case: 21STCV13582, Date: 2024-01-18 Tentative Ruling

Case Number: 21STCV13582    Hearing Date: January 18, 2024    Dept: 30

JOSE ORTIZ vs GRAND PRIX ASSOCIATION OF LONG BEACH

TENTATIVE Defendant’s motion for summary judgment, or summary adjudication is DENIED.

Legal Standard

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”).)

Here, Plaintiff has not filed an opposition. Lack of opposition is not grounds to grant a motion for summary judgment if movant has not met its initial burden of proof. Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081.

Discussion

Defendant moves for summary judgment on the grounds that: (1) Plaintiff fails to identify a dangerous condition; (2) Defendant did not have notice of the dangerous condition; (3) Defendant did not breach its duty to maintain a reasonably safe premises; and (4) Defendant did not cause Plaintiff’s fall.

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.¿¿(Castellon v. U.S. Bancorp¿(2013) 220 Cal.App.4th 994, 998.)¿¿Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property¿to¿avoid exposing others to an unreasonable risk of harm.¿¿(Annocki¿v. Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 37.)¿¿If a dangerous 7 condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition¿reasonably safe for their¿[customers’]¿use or to give a warning adequate to enable them to avoid the harm.”¿¿(Bridgman v. Safeway Stores, Inc.¿(1960) 53 Cal.2d 443, 446.)

Existence of a Dangerous Condition

Defendant argues that Plaintiff cannot present any evidence regarding how he fell, or the alleged dangerous condition causing his fall. Defendant contends that in Plaintiff’s Complaint, he alleges he “encountered covered, hidden, camouflaged cables,” a claim he later discounts, stating that “he tripped and fell on a raised cable cover.” (Separate Statement (“SS”) No. 9.) The Court finds there is no difference between these statements. Plaintiff clearly identifies the cable cover as the dangerous condition. Defendant next argues that the use of cable covers at largescale events, such as the Acura Grand Prix, are exceedingly common, and are placed over necessary cables in order to prevent trip and fall accidents. Reaction Audio Visual covered all potential trip hazards, such as cables that run from Front of House mixing position to Stage, with low profile ADA/DDA complaint ramps, which were bright orange in color. The low profile cable protectors used were manufactured using guidelines provided by NEC, OSHA, RoHS, REACH, and MUTCD. (SS No. 23.) The Court finds that Defendant has not met its initial burden of showing that there are no triable issues as to whether a dangerous condition existed. Code compliance is a factor for the jury to consider in matters of negligence. (Hernandez v. Badger Const. Equip. Co., et al. (1994) 28 Cal.App.4th 1791, 1831 (“compliance with regulations… does not necessarily eliminate negligence but instead simply constitutes evidence for jury consideration with other facts and circumstances.”) Thus, the fact that the cable cover complied with guidelines is not dispositive. Moreover, Defendant presents no argument or caselaw to show that cable covers cannot be a dangerous condition, especially in a concert setting where the crowd of people could block the sight of a cable cover altogether. Thus, the burden does not shift to Plaintiff.

Notice

Defendant additionally argues that it did not have actual or constructive notice of a dangerous condition.

“A plaintiff alleging injuries based on a dangerous condition must prove the defendant¿either: (1) created the dangerous condition, or (2)¿knew or should have known of the dangerous condition.¿ (See¿Peralta v. Vons Companies, Inc.¿(2018) 24 Cal.App.5th 1030, 1036; see also¿Ortega v. Kmart Corp.¿(2001) 26 Cal.4th 1200, 1206.)¿¿“[A] defendant¿is entitled to judgment as a matter of law if the plaintiff fails to show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and 8 inspection.”¿¿(Ortega,¿supra, 26 Cal.4th at p.¿1207.)¿¿“The owner must inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it.” (See id.) “A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers . . . .” (See id. at 1205.) “[A]s to business invitees, the owner should conduct frequent inspections.” (See id. at 1207.) ¿¿

In support of the argument that it had no actual or constructive notice, Defendant presents evidence that despite heavy foot traffic of around 187,000 patrons at the event (SSF No. 11), prior to the time of the alleged fall, none of the Grand Prix’s personnel or employees observed any conditions in or around the area where plaintiff claims he fell which presented any danger to people walking in this area. (SSF No. 12.) Grand Prix’s employees and personnel were never made aware of any dangerous condition on the premises where Plaintiff fell. (SSF No. 13.) Prior to his fall, Plaintiff never complained to Grand Prix that the area where he fell was dangerous or presented any dangerous condition. (SSF No. 14.) There were no other instances of any other individuals falling in the area where Plaintiff fell during the time period of April 12, 2019, to April 14, 2019. (SSF No. 15.) In fact, there were no other instances of any other individuals falling over a cable cover in the history of the Acura Grand Prix of Long Beach, dating back to 1975. (SSF No. 16.)

The Court finds Defendant has not met its burden to show that no triable issue exists as to whether it had notice of the alleged dangerous condition. Defendant contends it had no notice of any dangerous condition, yet presents evidence that it retained an independent contractor, Reaction Audio Visual, to lay cables and cover the cables. Thus, this evidence shows that Defendant did have notice of what Plaintiff alleges was a dangerous condition. The question is not whether Defendant thinks the alleged condition was dangerous, but whether it had notice of the alleged dangerous condition Plaintiff contends caused his fall. Further, this evidence could also show that Defendant may have created the condition.

Even if the Court were to ignore that Defendant presented evidence that it hired someone to arguably create the condition, and thus, had notice of it, Defendant presents no evidence for this Court to find it met its burden on summary judgment to show it did not have constructive notice. Despite arguing that it conducts regular inspections, Defendant presents insufficient evidence in support of this argument. Defendant’s evidence that it conducts inspections are broad statements that: the concert site was fully inspected by Fire and Safety officials prior to the show throughout the event (Struck Decl., ¶ 7); and Grand Prix had in place and implemented procedures for assuring, throughout the day, that the venue was free of hazardous conditions. (Michaelian Decl., ¶ 8.) However, no evidence is presented showing the area at issue was inspected, no evidence is presented to show the kind of inspections conducted, and no evidence is presented to show the type of procedures used to ensure the venue was free of hazardous conditions. Therefore, these conclusory statements alone are not sufficient to meet Defendant’s burden to show it did not have constructive notice.

Breach

Defendant presents the same evidence to argue it did not breach any duty to Plaintiff. Namely, Defendant presents evidence that there were no other reported falls, no employee observed the condition, and that it hired Reaction Audio Visual to cover any cables that could present a tripping hazard. However, the Court has found that Defendant has not met its burden to show that there are no triable issues of fact as to whether a dangerous condition existed, and whether Defendant had notice of the dangerous condition. As such, Defendant cannot meet its burden to show it did not breach any duty.

Causation

Lastly, Defendant broadly argues, without evidence, that Plaintiff fell due to his own negligence. Without any evidence to support this argument, Defendant has not met its burden.

Conclusion

Accordingly, Defendant’s motion for summary judgment, or summary adjudication is DENIED. Moving party is ordered to give notice