Judge Michael E. Whitaker, Case Number: 20STCV03577, Date: 2024-05-09 Tentative Ruling

Judge: Michael E. Whitaker, Case: 20STCV03577, Date: 2024-05-09 Tentative Ruling

On January 29, 2020, Plaintiff Derek Underwood (“Plaintiff”) brought suit alleging five causes of action for (1) assault; (2) battery; (3) negligent hiring, training, retention, and supervision; (4) general negligence; and (5) premises liability, stemming from a physical attack at a music venue. Defendants Topanga Creek Properties, a general partnership; Topanga Creek Properties, LLC; Young Ok Bae; and Moon Shik Bae (“Moving Defendants”) move for summary judgment, or in the alternative, summary adjudication on the following issues:

Issue One: There is no triable issue of material fact as to the first cause of action for assault in that the persons involved in the altercation with the plaintiff were not agents or employees of movants, the property owners.

Issue Two: There is no triable issue of material fact as to the second cause of action for battery in that the persons involved in the altercation with the plaintiff were not agents or employees of movants, the property owners.

Issue Three: There is no triable issue of material fact as to the fourth cause of action for general negligence in that movants did not owe a duty to the plaintiff which was breached.

Issue Four: There is no triable issue of material fact as to the fourth[1] cause of action for premises liability in that movants did not owe a duty to the plaintiff which was breached.

Issue Five: There is no triable issue of material fact as to the prayer for punitive damages in that movants did not engage in despicable conduct relative to plaintiff.

The Court notes that the third cause of action for negligent hiring, training, retention, and supervision is not brought against the Moving Defendants. Plaintiff opposes the motion and the Moving Defendants reply.

Plaintiff requests judicial notice of the “Los Angeles County Sheriff’s Department INCIDENT REPORT, February 3, 2018, p.7 […] and that it contains the following statement: ‘It should be noted the area where this incident occurred is known for high drug activity use.’”

Plaintiff’s request for judicial notice is denied. As a threshold matter, police reports are not subject to either mandatory or discretionary judicial notice under Evidence Code sections 451 or 452 because they are not part of a court record under section 452, subdivision (d), nor are they records of “official acts of the legislative, executive, or judicial departments” of the state under section 452, subdivision (c). (In re Marriage of Brewster & Clevenger (2020) 45 Cal.App.5th 481, 498.)

Moreover, even if judicial notice of the police report were proper, courts may not take judicial notice of the truth of hearsay statements or allegations contained in the report “because such matters are reasonably subject to dispute and therefore require formal proof.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [cleaned up].) Therefore, the Court also cannot take judicial notice of the statement in the police report that the incident occurred in a high drug activity use area.

“[T]he 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[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” ¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (hereafter 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.” ¿(Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)

Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Aguilar, supra, 25 Cal.4th. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed. (See Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.) A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action. (See Code Civ. Proc., § 437c, subd. (n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.) Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action. (See Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 583.) Additionally, in line with Aguilar, “[o]n a motion for summary adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

Moving Defendants argue that the first and second causes of action, for battery and assault, respectively, fail because the perpetrators were not the agents or employees of the Moving Defendants, who own the property.

“[A]n employer is vicariously liable for the torts of its employees committed within the scope of the employment.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal.4th 291, 296.) “[A]n employee's willful, malicious and even criminal torts may fall within the scope of his or her employment for purposes of respondeat superior, even though the employer has not authorized the employee to commit crimes or intentional torts. (Id. at pp. 296-297.)

In Carr v. Wm. C. Crowell Co. (1946) 28 Cal.2d 652, the employer was held vicariously liable when an employee threw a hammer at another worker after a dispute arose regarding work on the property, because the dispute was “engendered” by the employment enterprise, as opposed to a personal conflict between the workers separate from the job. By contrast, in Monty v. Orlandi (1959) 169 Cal.App.2d 620, the bar owner was not vicariously liable when the on-duty bartender assaulted the plaintiff because the assault stemmed from a personal dispute with the plaintiff’s wife.

However, in order for vicarious liability to attach, there must be an employment or agency relationship. “An agent is one who represents another, called the principal, in dealings with third persons. Such representation is called agency. Agency is either actual or ostensible. An agency is actual when the agent is really employed by the principal. An ostensible agency is established when a principal intentionally, or by want of ordinary care, causes a third person to believe another is an agent. A principal is liable for the acts of an ostensible agent when third parties have justifiably relied on representations made by the principal. A principal is also liable when the principal knows the agent holds himself or herself out as clothed with certain authority and remains silent.” (Jacoves v. United Merchandising Corp. (1992) 9 Cal.App.4th 88, 103–104 [cleaned up].)

The essential characteristics of an agency relationship are “(1) An agent or apparent agent holds a power to alter the legal relations between the principal and third persons and between the principal and himself; (2) an agent is a fiduciary with respect to matters within the scope of the agency; and (3) a principal has the right to control the conduct of the agent with respect to matters entrusted to him.” (Garlock Sealing Techs., LLC v. NAK Sealing Techs. Corp. (2007) 148 Cal.App.4th 937, 964.)

As alleged in the complaint, non-moving Defendants Andrew Heric, Brooks Ellis, and Does 1-20, “violently and brutally screamed at, attacked, jumped, hit, punched, kicked, and/or used an electric weapon on Plaintiff and some of the people Plaintiff was near.” (UMF 2; Complaint ¶ 43.) Heric and Ellis are alleged to be employees/agents of Defendant Label27, who leased the premises from the Moving Defendants and who co-hosted the music event. (Complaint ¶¶ 6-8.)

The Moving Defendants, by contrast, own the premises where the music event took place. (UMF 26.) The Moving Defendants did not put on the music event. (UMF 28.) Moving Defendants have provided evidence that they do not necessarily have advanced knowledge that events will occur, nor do they exercise any control over the activities of the tenants or promoters putting on events, like the music event the night of the attack. (UMF 29-33.)

Specifically, Simon Yoon, the on-sight manager for Topanga Creek Properties, a General Partnership declared “I did not exercise any control over the activities of the other tenants or promoters putting on events, including concerts or performances, including providing security for same, and many times I had no knowledge the event, especially those in the evening hours, were even taking place.” (Yoon Decl. ¶ 15.)

Likewise, Glenn Rothner, the managing agent for Topanga Creek Properties, a General Partnership, declared, “Topanga Creek Properties, a General Partnership did not exercise any control over the activities of the tenants or promoters putting on events, including concerts or performances, including providing security for same, and had no knowledge an event was even taking place on the night of the Underwood incident.” (Rothner Decl. ¶ 8.) Rothner further declared, “Topanga Creek Properties, a General Partnership, never agreed to provide or pay for security for any event on the property including any at the Corazon Performing Arts venue. If the tenant or subtenant decided that security was appropriate, it was up to them, not the property owner to provide it. As the managing agent of the property owner I had no knowledge of the particulars of any event, including such things as numbers of people anticipated to attend, the nature of the event, the time of the event, and whether security and/or crowd control measures would be undertaken by the promoter of the events.” (Rothner Decl. ¶ 10.)

Young Ok Bae, who co-owns Topanga Creek Properties, a General Partnership with her husband, through the entity Topanga Creek Properties, LLC declared:

18. Neither I, my husband, Topanga Creek Properties LLC nor Topanga Creek Properties, a General Partnership put on the event which I learned after-the-fact was happening on the night of the Underwood incident.

19. Neither I, my husband, Topanga Creek Properties LLC nor Topanga Creek Properties, a General Partnership exercised any control over the activities of the other tenants or promoters putting on events, including concerts or performances, including providing security for same, and I had no knowledge the [sic] an event was even taking place on the night of the Underwood incident.

Therefore, Moving Defendants have met their initial burdens of production and persuasion that Heric and Ellis, who committed the attack, are not agents of the Moving Defendants because Moving Defendants have no control over them.

Having met their initial burdens of production and persuasion, the burden shifts to Plaintiff to create a triable issue of material fact.

Plaintiff attempts to demonstrate that Moving Defendants did, in fact, exert control over the premises, because they implemented rules and regulations as addendums to the lease agreements, which required that the tenants comply with the law and not distribute alcohol on the premises without permission from the landlord.

In support of this position, Plaintiff has produced as Exhibits 15 and 16, which was also Exhibits 15 and 16 to the Rothner Deposition, two unsigned lease addendums to a lease agreement between Moving Defendants and a lessee named Alexandra DeCleene, with rules and regulations and deposition testimony from Rothner that these Exhibit control DeCleene’s lease agreement. (See Ex. C [Rothner Depo] at p. 121:10-22.) Plaintiff has also produced the deposition testimony of Simon Yoon, that there are no written practices, policies and procedures that apply to all tenants (Ex. D [Yoon Depo] at pp. 80:2-81:5; 104:1-16.) Plaintiff has further produced the deposition testimony of Young Ok Bae indicating that the partnership could lose its liquor license if any tenant other than the General Store sold or served alcohol on the premises, and it would not allow that to continue, if it became aware of it. (Ex. E [Bae Depo] at pp. 105:16-106:20; 109:7-14; 110:3-24.)

Plaintiff has not met his burden to create a triable issue of material fact that Moving Defendants exerted control over the attacking Defendants Heric and Ellis. Plaintiff has not produced any lease agreement between itself and Label27, Heric, or Ellis, much less any signed lease addendum requiring that Label27, Heric, or Ellis comply with the law or refrain from distributing alcohol on the premises. In fact, the Yoon deposition testimony indicates there were no such written practices, policies, or procedures that applied to all tenants.

Plaintiff also argues that the complaint alleges that Moving Defendants are joint venturers with the Label27 Defendants, however Plaintiff has not produced any evidence suggesting that the Moving Defendants profited from the music events put on by Label27 aside from the lease agreement generally or any other evidence that Moving Defendants were joint venturers with Label27.

However, Plaintiff makes a request pursuant to Code of Civil Procedure, section 437c, subdivision (h), for additional discovery, indicating that “a death and serious pregnancy/newborn brain injury medical events have prevented discovery important to these proceedings.” (See also Balam Decl. ¶¶ 9-18.) Specifically, Plaintiff contends that Defendants did not produce several requested lease agreement documents and other documents pertaining to Moving Defendants’ control, and due to the medical events, Plaintiff has been unable to follow up to acquire those documents in time for these proceedings.

In Reply, Moving Defendants argue that Plaintiff’s continuance should be denied because the motion was filed 8 months ago, so Plaintiff had ample time conduct the requested discovery. But the Balam declaration indicates that the November 2023 depositions crystallized that the documents existed but had not yet been produced, that illness and death in the Bae family prevented discovery from December 2023-February 2024, and then from February – April 2024, Plaintiff’s counsel’s wife and newborn baby suffered serious health issues requiring separate hospitalizations.

In light of this information, the Court agrees a continuance on Issues 1 and 2 is warranted and continues the hearing on the Motion with respect to Issues 1 and 2 so the parties may complete the necessary discovery regarding the lease agreements and other missing documents regarding control.

The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. 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, citation omitted.) “Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

“It is generally true that a person is liable for injuries to another only as a result of his or her own conduct. Liability is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril. Thus, liability is based on his or her own failure to act reasonably.” (Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1242 [cleaned up]; Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1 [“premises liability alleges a defendant property owner allowed a dangerous condition on its property or failed to take reasonable steps to secure its property against criminal acts by third parties”].)

Moving Defendants contend they did not owe Plaintiff a duty of care because the attack was not foreseeable.

Moving Defendants have provided evidence that Plaintiff himself had been to the location over 100 times prior to the incident because his friend ran a music venue there and Plaintiff would play music and hang out. (Ex. B [Plaintiff’s Depo] at p. 135:7-24.) Plaintiff further testified he had no problem with violence directed against him on the property prior to the incident. (Id. at p. 139:14-18.)

Plaintiff also asserts that Plaintiff “felt comfortable” at the venue until the incident, citing Plaintiff’s depo, p. 240:19-23, and that prior to the incident, Plaintiff was “not really” aware that there was some sort of problem with events at the location where it was likely that people might be attacked (p. 144:6-10.) The Court notes that Moving Defendants did not provide page 240 of Plaintiff’s deposition testimony, and page 237, which was provided, indicates only that Plaintiff did not feel safe at the venue following the incident; it does not indicate that Plaintiff felt safe there prior.

11. I am aware of an alleged incident in February, 2018, involving someone named Derek Underwood who has sued me personally, sued the market and sued the LLC I own and the general partnership. The incident happened at night after the store was closed and I was not on site during the incident. The store has security cameras which monitor the parking lot area, however, which I understand captured the incident.

12. Before the Underwood incident I aware of only one incident in the prior 21 years since I have been at the property which involved violence.

13. In approximately 2005, there was an incident involving the son of the pizza shop owner, no longer a tenant on the property, where a verbal altercation inside the pizza shop between the son and another person led to persons running into the parking lot where a person was stabbed and the attacker ended up going to jail. It was not associated with any musical event on the premises. This was about 13 years before the Underwood incident

14. I am not aware of any homeless living on the subject property – it is my observation that they seem to be living off the property in the hills and may come onto the property from time to time in which case they are told to leave. However, I have never been aware of any violent conduct or violent criminal activity associated with such homeless individuals.

16. I am on the property on a daily basis working in the grocery store but the store is closed at night.

17. I am aware that musical events take place on the property (not at the building where the general store is located) and that the parking lot is used for persons attending those events. I was never aware of any violent criminal activity associated with such musical events.

8. I am familiar with the activities on the location since 2013. That would include any criminal activity.

9. Other than shoplifting and minor theft, I am not aware of any criminal activity on the premises that I can recall before becoming aware of an incident with Derek Underwood, a regular customer of the store.

10. I came to work one day in early 2018 and Derek Underwood visited the store and asked that I obtain surveillance video from the night before. I located the video and allowed him to view it. I did as well. It showed an altercation taking place in the patio area of a building which was not part of the general store and also in the parking lot. The events in the surveillance video which I watched took place after the general store had closed and I had left the property.

11. That incident with Mr. Underwood was the first time I became aware of any violent criminal activity on the property.

12. I am aware of homeless people at or near the property but not aware of any violence involving them.

13. I am not aware of any violence associated with drug activity on the property.

14. I am aware that the tenants and promoters put on musical events from time to time and these are run by the other tenants or promoters but was never aware of any violence associated with those events before the Underwood incident.

16. I never communicated to the managing agent of the General Partnership before the Underwood incident any concern with security or safety at the premises.

Further, Moving Defendants provide the declaration of Glenn Rothner, which indicates:

5. Before the Underwood incident I was not aware of any other incident at the property as to which I was functioning as managing agent for the owner which involved violence.

6. I am aware generally of homeless near said property. However, I have never been made aware of any violent conduct or violent criminal activity associated with such homeless individuals.

7. I have not been made aware of any violence associated with any drug or alcohol use on the property.

8. Topanga Creek Properties, a General Partnership did not exercise any control over the activities of the tenants or promoters putting on events, including concerts or performances, including providing security for same, and had no knowledge an event was even taking place on the night of the Underwood incident.

Moving Defendants have not met their burdens of production and persuasion that a violent altercation like the one that injured Plaintiff was not foreseeable. Moving Defendants’ own evidence provides conflicting accounts of Yoon’s, Rothner’s, and Young Ok Bae’s knowledge of homeless encampments in the parking lot of the property, drug use on the property, and prior violence at the property.

Further, the characterization of Plaintiff’s testimony as “not really” being aware of the threat of violence at the venue mischaracterizes Plaintiff’s testimony, which cites numerous examples of people having altercations, including physical altercations at the venue. (See Ex. B [Plaintiff’s depo] at pp. 144:6-21 [“I know that they have had to call the police to their venue multiple times […] if I said ‘Hey, why were the police outside?’ [the Baes] said, ‘Oh, this guy drove up and attacked someone.’”]; 145:21-147:10 [“someone driving through the Canyon came up and they got into a verbal spat and someone hit the other person […] it was a local that was notoriously in trouble that was staying in an RV in the back parking lot.”]; p. 147:20-24 [“I think [the Baes] were aware of it because one of the guys was knocked out, and so they called the police.”]; p. 149:13-19 [“there was usually people living on the property in their RVs or sleeping in their cars on the property or drug-related incidents.”]; p. 151:3-19 [“I was in 131 with actually my friend David Blake that was there, and out of nowhere some guy came in through the back door that was living in the back in an RV, and walked in and slapped Brian Howard in the face, because I guess he did a job painting the venue and Brian hadn’t paid him yet.”].) In short, Plaintiff’s deposition testimony outlines several prior violent incidents that Plaintiff was personally aware of, as well as testimony that other members of the Bae family were generally aware of these prior incidents.

To obtain an award of punitive damages, a plaintiff must prove the elements set forth in the punitive damages statute, Civil Code section 3294. (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704, 721.) As set forth in the Civil Code,

(1) “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

To defeat summary adjudication on a claim for punitive damages, the burden is on plaintiff to produce “clear and convincing evidence” of malice, fraud, or oppression. (See Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121 [“on a motion for summary adjudication with respect to a punitive damages claim, the higher evidentiary standard applies”].) As the Court of Appeal explained in Basich, “[i]f the plaintiff is going to prevail on a punitive damages claim, he or she can only do so by establishing malice, oppression or fraud by clear and convincing evidence. Thus, any evidence submitted in response to a motion for summary adjudication must necessarily meet that standard.” (Basich, supra, 87 Cal.App.4th at p. 1121.)

Moving Defendants contend that Plaintiff cannot establish Moving Defendants engaged in malice, fraud or oppression, including despicable conduct. Here, Plaintiff does not address Issue 5 in the opposition or in Plaintiff’s section 437c(h) request for additional discovery. Thus, Plaintiff has not produced “clear and convincing evidence” to show that there is a triable issue of material fact regarding whether the Moving Defendants engaged in malice, fraud or oppression to substantiate the punitive damages claim.

Therefore, the Court grants in part, denies in part, and continues in part Moving Defendants’ Motion for Summary Adjudication. With respect to Issues 1 and 2, the Court grants Plaintiff’s request to continue the hearing to allow the parties to finish discovery with respect to the missing lease agreement and other control documents. With respect to Issues 3 and 4, having found that Moving Defendants failed their initial burdens of production and persuasion, the Court denies summary adjudication. With respect to Issue 5, the Court finds that Moving Defendants have met their burdens of production and persuasion that Plaintiff will be unable to establish they engaged in despicable conduct, and Plaintiff did not address this issue in either the Opposition or in Plaintiff’s section 437c(h) request to continue the hearing to finalize discovery. Therefore, the Court grants summary adjudication as to Issue 5.

Because the Court denies summary adjudication as to Issues 3 and 4, the Court also denies summary judgment.

With respect to Issues 1 and 2, the hearing on the motion for summary adjudication shall be continued to June 17, 2024 at 8:30 A.M. in Department 207 to allow the parties to finalize their discovery of the lease agreement and other control documents.

Plaintiff shall file and serve supplemental opposition papers on or before June 3, 2024 and Moving Defendants shall file and supplemental reply papers on or before June 10, 2024. All supplemental papers shall address Issues 1 and 2 only, and any supplemental memorandum of points and authorities shall not exceed 10 pages.

Moving Defendants shall provide notice of the Court’s ruling and file the notice with a proof of service regarding the same.

[1] “Premises Liability” is the fifth cause of action, not the fourth. Therefore, the Court interprets this issue as challenging the fifth cause of action.

DEPARTMENT	207
HEARING DATE	May 9, 2024
CASE NUMBER	20STCV03577
MOTION	Motion for Summary Judgment/Summary Adjudication
MOVING PARTIES	Defendants Topanga Creek Properties, a General Partnership; Topanga Creek Properties, LLC; Young Ok Bae; and Moon Shik Bae
OPPOSING PARTY	Plaintiff Derek Underwood