Judge Peter A. Hernandez, Case Number: 21STCV05798, Date: 2023-09-18 Tentative Ruling

1. Defendant BJ’s Restaurants, Inc.’s Motion for Summary Judgment is GRANTED.

2. Defendant BJ’s Restaurants, Inc.’s Motion to Bifurcate is DENIED as MOOT.

3. Defendants Reina Guevara’s and Adrian Salazar’s Motion for Summary Judgment is GRANTED.

Plaintiffs Ethan Bergeron (“Ethan”) and Victoria Bergeron (“Victoria”) (together, “Plaintiffs”) allege as follows:

On February 16, 2019, and at all relevant times, Victoria and Defendant Andrea Salazar (“Andrea”) worked at a BJ’s Restaurant. On February 16, 2019, Andrea was babysitting Victoria’s 4-year-old son Ethan when, without Victoria’s knowledge, Andrea took Ethan to a party at a house owned by her brother, Defendant Adrian Salazar (“Adrian”), and Adrian’s wife, Defendant Reina Guevara (“Guevara”). At the party, Ethan “impacted” a sliding glass door, which shattered into large, jagged pieces. One of these pieces pierced Ethan’s abdomen. Andrea pulled this piece out of Ethan’s abdomen, which further ruptured his organs and muscles. After the incident, Andrea physically and verbally harassed Victoria; although Victoria complained, she was punished by having to change shifts to avoid coming into contact with Andrea, which affected her time with Ethan.

On February 16, 2021, Plaintiffs filed a complaint, asserting causes of action against Andrea, Adrian, Guevara, BJ’s Restaurants, Inc. (“BJ’s”) and Does 1-50 for:

2. Negligence (all Defendants [except BJ’s after demurrer sustained on 01/31/2022])

On October 14, 2021, Plaintiffs dismissed the fourth cause of action against Adrian and Guevara only, without prejudice. On November 8, 2021, Andrea’s default was entered.

On January 31, 2022, the court sustained BJ’s demurrer to the second and sixth causes of action, with 30 days’ leave to amend.

The Final Status Conference is set for July 16, 2024. Trial is set for July 30, 2024.

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 a judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119 [emphasis theirs].)

“On a motion for summary judgment[/adjudication], 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., § 437, 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.)

BJ’s moves the court for summary judgment in its favor and against Ethan and Victoria (together, “Plaintiffs”); in the alternative, BJ’s seeks summary adjudication as follows:

Plaintiffs’ fifth cause of action for “Harassment and Assault and Battery” fails as a matter of law because (a) Plaintiffs do not assert a claim on behalf of Ethan; (b) BJ’s cannot be held vicariously for Salazar’s conduct because the alleged act was not within the scope of employment; (c) Victoria’s claim is barred by workers’ compensation preemption under Labor Code § 3601 and (d) Victoria cannot establish ratification by BJ’s.

On February 1, 2024, the court elected to continue the hearing on the motion to the instant date to permit Plaintiffs’ counsel to address certain deficiencies in Plaintiffs’ opposing separate statement filed January 18, 2024, which were identified at length by the court. At that time, the court instructed Plaintiffs’ counsel to file and serve a corrected Separate Statement no later than 14 calendar days prior to the continued hearing date and expressly stated that “[t]he court is not hereby inviting, and will not consider, any additional briefings or filings of declarations and/or exhibits, including but not limited to any deposition testimony procedure from Andrea . . .” (emphasis added).

On April 2, 2024, Plaintiffs filed the following documents with respect to the motion: (1) “Plaintiff’s [sic] First Amended Separate Statement of Disputed & Undisputed Facts in Opposition to Defendant BJ’s Restaurant’s Motion for Summary Judgment” (12 pages); (2) “Plaintiff’s [sic] First Amended Compendium of Evidence in Opposition to Defendant BJ’s Restaurant’s Motion for Summary Judgment” (356 pages); (3) “Plaintiff’s [sic] Objections to Defendants’ Evidence in Support of Defendant BJ’s Restaurant’s Motion for Summary Judgment” (12 pages) and (4) “Plaintiff’s [sic] Objections to Defendants’ Evidence in Support of Defendant BJ’s Restaurant’s Motion for Summary Judgment” (11 pages).

The court declines to consider any of Plaintiffs’ April 2, 2024 filings, apart from “Plaintiff’s [sic] First Amended Separate Statement of Disputed & Undisputed Facts in Opposition to Defendant BJ’s Restaurant’s Motion for Summary Judgment,” as per its February 1, 2024 ruling. The court did not authorize the late submission of any evidentiary objections.

“Plaintiff’s [sic] First Amended Separate Statement of Disputed & Undisputed Facts in Opposition to Defendant BJ’s Restaurant’s Motion for Summary Judgment” is still deficient. California Rules of Court (“CRC”) Rule 3.1350, subdivision (f)(2) provides that an opposing separate statement must “unequivocally state” whether a fact is “disputed” or “undisputed,” and that “[a]n opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.” Plaintiffs’ counsel was advised of this requirement in the court’s February 1, 2024 ruling.

Plaintiffs’ responses to BJ’s “Undisputed Material Facts and Supporting Evidence” (“DUMF”) Nos. 4-10, 15-21 and 23-27 reflect non-compliance with the above CRC. (See also Code Civ. Proc., § 437c, subd. (b)(3) [“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts 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. . .”].) Plaintiffs claim to “dispute” DUMF Nos. 4-10, 15-21 and 23-27, but fail to provide any citation to the evidence in support of their position that DUMF Nos. 4-10, 15-21 and 23-27 are controverted, including by reference to the exhibit, title, page, and line numbers; instead, each of Plaintiffs’ foregoing responses purport to refer the court to one of Plaintiffs’ evidentiary objections (which, again, are not being considered by the court as they were newly filed on April 2, 2024). The court will treat Plaintiffs’ response to DUMF Nos. 4-10, 15-21 and 23-27 as “undisputed."

Additionally, Plaintiffs have changed their original response to DUMF Nos. 4, 8, 9, 15, 17 and 25 from “undisputed” to “disputed” without explanation[2], which is beyond the scope of the court’s February 1, 2024 ruling. The court will treat Plaintiffs’ response to DUMF Nos. 4, 8, 9, 15 and 17 as “undisputed.” Plaintiffs also added a new “Additional Undisputed Material Fact” (“PUMF”) (i.e., No. 8) and added new citations in support of their PUMF Nos. 5 and 7. The court will not consider PUMF No. 8 and will consider Plaintiffs’ original citations to their PUMF.

Plaintiffs’ “Compendium of Evidence[, etc.]” also reflects non-compliance with CRC Rule 3.1116, subdivision (b) (i.e., “[o]ther than the title page, the exhibit must contain only the relevant pages of the [deposition] transcript”).

The court summarily overrules BJ’s evidentiary objections on the basis that they reflect non-compliance with California Rules of Court Rule 3.1352, subdivision (b)(3) (i.e., each written objection to evidence must “[q]uote or set forth the objectionable statement or material”).

Again, the court declines to consider Plaintiffs’ evidentiary objections filed April 2, 2024 [see above].

There is no provision in the Code of Civil Procedure § 437c or CRC Rule 3.1350 that permits a moving party to respond to the opposing party’s response to moving party’s original separate statement. (See Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252). The court will not consider BJ’s “Response to Plaintiffs’ Separate Statement in Support of its Reply to Opposition to Defendant BJ’s Restaurants, Inc.’s Motion for Summary Judgment” (“Response”) as it pertains to BJ’s original separate statement; however, it will consider that portion of the Response wherein BJ’s responded to Plaintiffs’ “Separate Statement of Material Facts in Dispute.”

BJ moves the court for summary judgment in its favor and against Ethan and Victoria (together, “Plaintiffs”).

On February 16, 2021, Plaintiffs filed a complaint, asserting causes of action against Guevara, Adrian, Andrea and BJ’s for (1) Premises Liability, (2) Negligence, (3) Negligence Per Se, (4) Product Liability and (5) Harassment, Assault and Battery; only the second, fifth and sixth causes of action were asserted against BJ’s. On January 31, 2022, the court sustained BJ’s demurrer to the second and sixth causes of action, with 30 days’ leave to amend. Plaintiffs did not file a First Amended Complaint; as such, the only cause of action remaining against BJ’s is the fifth cause of action for Harassment, Assault and Battery.

Victoria and Andrea worked for a restaurant owned by BJs at all relevant times. (Complaint, ¶¶ 9, 37 and 38). On or about February 16, 2019, Andrea was babysitting Victoria’s 4-year-old son Ethan when, without Victoria’s knowledge, she took Ethan to a party at a house owned by her brother Adrian and Adrian’s wife, Guevara. (Id., ¶¶ 3, 4, 7, 21 and 24). At the party, Ethan “impacted” a sliding glass door, which shattered into large, jagged pieces. (Id., ¶¶ 25 and 26.) One of these pieces pierced Ethan’s abdomen. (Id., ¶ 27.) Andrea pulled this piece out of Ethan’s abdomen, which further ruptured his organs and muscles. (Id., ¶ 28.)

Following the February 16, 2019 incident, Andrea began harassing Victoria at work. (Id., ¶ 39.) On multiple occasions Andrea touched, shoved or led Victoria to believe she was about to be touched with the intent to harm or offend at work. (Id., ¶ 113). Victoria did not consent to the touching and was harmed or offended by Andrea’s conduct. (Id., ¶ 115). Andrea’s conduct was motivated by her perception that Victoria was seeking to hold her brother responsible for Ethan’s injuries that occurred on his property. (Id., ¶ 116). Although Victoria complained to her store manager, Krystal Roe (“Krystal”) and area manager, Matthew Eastman (“Eastman”), BJs validated and approved of the harassment by failing to address Andrea’s conduct and instead punishing Victoria by “order[ing] [her] to change to the evening shift.” (Id., ¶¶ 42, 45, 117 and 118.) As a result of this shift change, Victoria was unable to spend time with Ethan and was “further injured.” (Id., ¶¶ 46 and 118.)

“The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues. . . [t]he complaint measures the materiality of the facts tendered in a defendant’s challenge to the plaintiff’s cause of action.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381 [quotations and citation omitted].)

There are no allegations in Plaintiffs’ complaint made by Ethan against BJ’s. Further, the parties agree that Plaintiffs do not allege that Ethan was harassed, assaulted, or battered. (UMF No. 1). Plaintiffs expressly state, in response to DUMF No. 1, that “Ethan “makes no claim against Defendant BJ’s Restaurants, Inc.” Accordingly, BJs’ motion for summary judgment as to Ethan is granted.

The parties agree that Victoria and Andrea were employed by BJ’s during the time Victoria alleges she was harassed, assaulted, and battered by Andrea (DUMF Nos. 2 and 3); that on

February 16, 2019, Victoria’s son Ethan was injured while at a residence owned by Adrian and Guevara (DUMF No. 7); that, in March and April 2019, Victoria worked morning shifts with Andrea (DUMF No. 4); that, following the incident with Ethan, Victoria asked Andrea for the address of the residence owned by Adrian and Guevara (DUMF No. 8); that, Andrea got upset when Victoria asked for the address because she believes Victoria intended to bring a claim against the homeowners insurance (DUMF No. 10); that, while Victoria was working a morning shift, Andrea passed by Victoria and used her body to push Victoria out of the way (DUMF No. 5); that when Andrea pushed Victoria, Andrea told Victoria to get out of her way and started laughing (DUMF No. 6); that Andrea never threatened Victoria (DUMF No. 26); that, other than Andrea, no one else at BJ’s called Victoria names or made any negative comments to or about Victoria (DUMF No. 27); that, other than this one alleged push by Andrea, there was no other instance of touching without consent between Victoria and Andrea or between Victoria and any other co-worker at BJ’s (DUMF Nos. 28 and 29); that, on that day, Victoria verbally informed a manager, Krystal Bartolotta (“Krystal”) about Andrea pushing her (DUMF No. 17); that Krystal said to her that BJ’s would move Victoria to night shifts and that she (i.e., Krystal) would have a conversation with Andrea (DUMF Nos. 18 and 19); that, about a week or two after the alleged push by Andrea, Victoria Bergeron started working night shifts at BJ’s (DUMF No. 20); that Victoria started and continued working night shifts at BJ’s so that she would not cross paths with Andrea because she was tired of being harassed by her. (DUMF Nos. 21 and 22); that BJ’s changed Victoria’s schedule to working night shifts in order to help the situation with Andrea (DUMF No. 23); that the length of Victoria’s shifts in the morning were the same as those at night (DUMF No. 25) and that Andrea never worked night shifts with Victoria (DUMF No. 24).

BJs provides argument regarding respondeat superior and claims that, even if Andrea was acting within the scope of her employment, Victoria’s exclusive remedy is workers’ compensation.

Victoria, however, has alleged vicarious liability against BJs based on ratification.[3]

“As an alternate theory to respondeat superior, an employer may be liable for an employee's act where the employer either authorized the tortious act or subsequently ratified an originally unauthorized tort.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 169.) “Ratification is the voluntary election by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him. A purported agent's act may be adopted expressly or it may be adopted by implication based on conduct of the purported principal from which an intention to consent to or adopt the act may be fairly inferred, including conduct which is “inconsistent with any reasonable intention on his part, other than that he intended approving and adopting it.” (Rakestraw v. Rodrigues (1972) 8 Cal.3d 67, 73.) “The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort, such as assault or battery.” (Baptist, supra, 143 Cal.App.4th at 169).

The above undisputed facts are that Victoria verbally informed a manager about Andrea pushing her that same day, that Victoria was told BJs would move her to night shifts and that Andrea would be spoken to, that Victoria was moved to night shifts shortly thereafter, that the length of Victoria’s shifts did not change and that Andrea never worked night shifts with her.

Victoria claims that BJ’s action in switching her to night shifts “restricted the time she had to spend with Ethan, and resulted in 1) less tips, and a 2) more [sic] frequently being called off; a degradation of her income” (Opp., 4:3-6)[4]. Victoria’s claims are unsupported, however. There is no evidence suggesting that Victoria ever communicated any of the above concerns and/or beliefs to BJs at any time.

BJ’s motion to bifurcate is denied as moot, based upon the ruling made on Motion #1.

Adrian and Guevara move the court for summary judgment in their favor and against Plaintiffs.

On April 2, 2024, Plaintiffs filed the following documents with respect to the motion: (1) “Plaintiffs’ First Amended Separate Statement of Disputed & Undisputed Facts in Opposition to Defendants’ Motion for Summary Judgment” (21 pages); (2) “Plaintiff’s [sic] Compendium of Evidence in Opposition to Defendant Guevara and Salazar’s Motion for Summary Judgment” (235 pages); (3) “Plaintiff’s [sic] Objections to Defendants’ Evidence in Support of Defendant Guevara and Salazar’s Motion for Summary Judgment” (3 pages); and (4) “Proposed Order on Plaintiff’s Objections to Defendants’ Evidence in Support of Defendant Guevara and Salazar’s Motion for Summary Judgment” (3 pages).

Again, the court declines to consider any of Plaintiffs’ April 2, 2024 filings, apart from “Plaintiffs’ First Amended Separate Statement of Disputed & Undisputed Facts in Opposition to Defendants’ Motion for Summary Judgment,” as per its February 1, 2024 ruling. The court did not authorize the late submission of any evidentiary objections.

“Plaintiffs’ First Amended Separate Statement of Disputed & Undisputed Facts in Opposition to Defendants’ Motion for Summary Judgment” contains a deficiency. CRC Rule 3.1350, subdivision (f)(2) provides that an opposing separate statement must “unequivocally state” whether a fact is “disputed” or “undisputed,” and that “[a]n opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.” Plaintiffs’ counsel was advised of this requirement in the court’s February 1, 2024 ruling.

Plaintiffs’ response to Adrian’s and Guevara’s “Undisputed Material Facts and Supporting Evidence” (“DUMF”) No. 30 reflects non-compliance with the above CRC. (See also Code Civ. Proc., § 437c, subd. (b)(3) [“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts 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. . .”].) Plaintiffs claim to “dispute” DUMF No. 30, but fail to provide any citation to the evidence in support of their position that DUMF No. 30 is controverted, including by reference to the exhibit, title, page, and line numbers; instead, Plaintiffs’ response purports to refer the court to one of Plaintiffs’ evidentiary objections (which, again, are not being considered by the court as they were newly filed on April 2, 2024). The court will treat Plaintiffs’ response to DUMF No. 30 as “undisputed."

Plaintiffs also added new citations in support of their “Additional Undisputed Material Fact” (“PUMF”) (i.e., Nos. 1 and 7). The court will consider Plaintiffs’ original citations to their PUMF only.

The court otherwise notes that Plaintiffs have changed their response to DUMF Nos. 12, 14, 18, 20, 21 and 31 from “disputed” to “undisputed.” The court, however, does not find these changes problematic as they narrow, rather than enlarge, the parties’ purported disagreements.

Exhibits F and G to Adrian’s and Guevara’s “Compendium of Evidence in Support of Reina Guevara and Adrian Salazar’s Motion for Summary Judgment” reflects non-compliance with CRC Rule 3.1116, subdivision (b) (i.e., “[o]ther than the title page, the exhibit must contain only the relevant pages of the [deposition] transcript”). Counsel is admonished.

The court rules on Adrian’s and Guevara’s evidentiary objections as follows: Sustained as to Nos. 1-13.

There is no provision in the Code of Civil Procedure § 437c or CRC Rule 3.1350 that permits a moving party to respond to the opposing party’s response to moving party’s original separate statement. (See Nazir, supra, 178 Cal.App.4th at 252). Adrian and Guevara’s “Response to Plaintiff’s [sic] Separate Statement of Undisputed Facts in Support of Opposition to Defendant Wu’s [sic] Motion for Summary Judgment” (“Response”) [filed 01/26/2024], however, does not pertain to their original separate statement but only to Plaintiffs’ “Separate Statement of Material Facts in Dispute.” This is appropriate.

On February 16, 2021, Plaintiffs filed a complaint, asserting causes of action against Guevara, Adrian, Andrea and BJ’s for (1) Premises Liability, (2) Negligence, (3) Negligence Per Se, (4) Product Liability and (5) Harassment, Assault and Battery; only the first through fourth causes of action were asserted against Adrian and Guevara. On October 14, 2021, Plaintiffs dismissed the fourth cause of action against Adrian and Guevara only, without prejudice; accordingly, only the first through third causes of action remain against Adrian and Guevara.

Ethan is Victoria’s son. (Complaint, ¶¶ 1 and 2). Adrian and Guevara are married (Id., ¶¶ 3 and 4). Andrea was Victoria’s co-worker. (Id., ¶¶ 24, 37 and 38). On or about February 16, 2019, Ethan was four years old and a guest at Adrian’s and Guevara’s home located at 1019 W. Ituni Street, West Covina, California 91790 (“Property”). (Id., ¶¶ 21-22). Ethan had been brought to the Property by Andrea, who was babysitting him so that Victoria could cover Andrea’s shift at work. (Id., ¶ 24). Ethan was moving through the Property and impacted a sliding glass door, which shattered into large, jagged pieces. (Id., ¶¶ 25 and 26). Ethan’s impact with the sliding glass door was due to Adrian’s and Guevara’s either closing the glass door in front of him or throwing or pushing him into the sliding glass door. (Id., ¶ 25). The sliding glass door was made without safety glass. (Id., ¶¶ 55, 89). At least one large piece of glass pierced Ethan’s abdomen, resulting in injury. (Id., ¶¶ 27 and 30).

Plaintiffs have alleged that the shattering occurred due to design flaw, manufacturing defect, or a failure of Adrian and Guevara to properly maintain the sliding glass door or to correct or install safety glass to replace this known hazard on the Property (Id., ¶ 26); that Adrian and Guevara failed to warn Ethan of the risk of injury or otherwise advise him of potential harm he might suffer (Id., ¶ 53) and that Adrian and Guevara failed to supervise Ethan (Id., ¶ 68).

The elements of both premises liability and negligence are “(1) a legal duty of care, (2) breach of that duty, and (3) proximate cause resulting in injury.” (Martinez v. City of Beverly Hills (2021) 71 Cal.App.5th 508, 517). Civil Code § 1714 provides that “[e]veryone is responsible. . . 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. . .”

“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). “Broadly speaking, 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.” (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1.) “In the absence of actual or constructive knowledge of the dangerous condition, the owner is not liable. Moreover, where the plaintiff relies on the failure to correct a dangerous condition to prove the owner's negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it.” (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476.) “The existence of duty is a question of law to be decided by the court [citation], and the courts have repeatedly declared the existence of a duty by landowners to maintain property in their possession and control in a reasonably safe condition.” (Lawrence v. La Jolla Beach & Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 22.)

The parties agree that Adrian and Guevara own the Property (DUMF No. 6); that they bought the Property in October 2014 (DUMF No. 7); that the Property was built in 1955 (DUMF No. 8); that the sliding glass door was already installed at the time of Adiran’s and Guevara’s purchase of the Property (DUMF No. 14); that, prior to their purchase of the Property, Adrian and Guevara were never in the business of manufacturing, distributing or installing any sliding glass door anywhere (DUMF No. 14); that from October 2014 until February 16, 2019, no one had run into the sliding glass door, there were no injuries, and there were no other accidents involving the subject glass door (DUMF No. 12) and that during the five years preceding the subject incident, Adrian and Guevara had frequently and regularly used the sliding glass door with no incident whatsoever (DUMF No. 18). The parties also agree that on February 16, 2019, Victoria entrusted Andrea to watch Ethan (DUMF No. 27); that Ethan went to speak with Andrea in the backyard of the Property and closed the sliding glass door behind him (DUMF No. 30); and that after Ethan’s conversation with Andrea, Ethan attempted to enter the home and collided with the close sliding glass door (DUMF No. 31).

Adrian and Guevara further attest that at the time of their purchase of the Property, the house was inspected and nothing was mentioned about changing or replacing the sliding glass door (Guevara Decl., ¶ 5; Adrian Decl., ¶ 5); that, at the time of purchase, no prior incidents involving the sliding glass door were reported to them (Guevara Decl., ¶ 6; Adrian Decl., ¶ 6); that no changes were made to the sliding glass door since their purchase of the Property until the time of the February 16, 2019 incident (Guevara Decl., ¶ 7; Adrian Decl., ¶ 7); that, prior to February 16, 2019, they did not know that the sliding glass door was annealed, plate glass and not a tempered glass (Guevara Decl., ¶ 9; Adrian Decl., ¶ 9); and that, prior to February 16, 2019, they did not know the difference between an annealed glass and a tempered glass (Guevara Decl., ¶ 11; Adrian Decl., ¶ 11).

The court determines that Adrian and Guevara have satisfied their moving burden negating the element of duty. Plaintiffs, in turn, contend that the 2014 Property Inspection Report (Pltfs’ Compendium of Evidence, Exh. 17) reflects that “defendants had foreknowledge of the dangers of their non-compliant glass door.” (Opp., 7:25-27). Exhibit 17, however, provides only the following information with respect to the “sliding door:” “can not determine if tempered, worn frames/hardware—COS[.]” Further, there were two boxes checked underneath “sliding door,” one for “good” and one for “fair.” The report does not state that the sliding glass door needed to be replaced or was not up to Code, nor does it make any recommendations pertaining to the sliding glass door. The court determines that Plaintiffs have not shown a triable issue of one or more material fact.

Plaintiffs have alleged that at all times, building codes of the County of Los Angeles and the City of West Covina concerning the installation of sliding glass doors such as that in the Property must be safety glass. (Id., ¶ 56); that it was also the express policy and municipal codes of those agencies that sliding glass doors must be glazed and thus be “safety glass” (Id.); and that, at the time of sale of the Property, such sliding glass doors must be upgraded to safety glass if they were not made of safety glass. (Id.)

Adrian and Guevara’s expert John Brault, MS (“Brault”) attests that the prevailing building code for the Property at the time of construction was either the 1952 or 1955 Uniform Building Code (UPC), neither of which required the use of tempered glass in the subject sliding door (Brault Decl., ¶ 5); that the sale of the Property in 2014 would not have triggered replacement of the glass in the subject sliding door (Id., ¶ 6) and that at the time of the subject incident the sliding glass door was compliant with the prevailing version of the UBC (Id., ¶ 7). The court determines that Adrian and Guevara have satisfied their moving burden negating the element of duty. Plaintiffs do not provide any evidence disputing these statements. The court determines that Plaintiffs have not shown a triable issue of one or more material fact.

[1] Motion #1 was filed (and personally served) on April 6, 2023 and originally set for hearing on June 22, 2023. On May 10, 2023, a “Notice Re: Continuance of Hearing and Order” was filed, wherein the June 22, 2023 hearing scheduled on Motion #1 was continued to July 11, 2023; notice was given to counsel. On July 11, 2023, the court continued the hearing to September 21, 2023; notice was waived.

Motion #2 was filed (and electronically served) on July 21, 2023 and originally set for hearing on October 12, 2023. Motion #3 was filed (and electronically served) on September 18, 2023 and originally set for hearing on October 12, 2023. On September 18, 2023, the court continued the September 21, 2023 hearing scheduled on Motion #1 to October 12, 2023 and ordered the parties to meet and confer re: the dates set for the Motions for Summary Judgment, Final Status Conference and trial and to submit a stipulation and order to continue said dates; notice was waived.

On October 12, 2023, the court continued the hearing on Motions #1-#3 to February 1, 2024, the Final Status Conference to July 16, 2024 and the trial date to July 30, 2024; notice was waived. On February 1, 2024, the court continued the hearing on Motions #1-#3 to April 16, 2024; notice was waived.

[2] Plaintiffs have also changed their response to DUMF Nos. 28 and 29 from “[d]isputed as misleading” to “undisputed.” The court does not find these changes problematic as they narrow, rather than enlarge, the parties’ purported disagreements.

[3] See Complaint, ¶ 118 (i.e., “BJS validated and approved the harassment if VICTORIA BERGERON, failing to address the tortfeasor’s conduct and instead punishing VICTORIA BERGERON by changing her shifts so she would see her son less often or be forced to quit.” Additionally, Victoria acknowledges in opposition that “[t]he only real issue is BJ’s ratification.” (Opp., 4:20).

[4] BJ’s points out in reply that night shifts were often desirable shifts where one could generate more income. (Plaintiff’s “Compendium of Evidence[, etc.]”, Exh. 2, 66:9-19).