Judge: Ronald F. Frank, Case: 23TRCV00606, Date: 2024-07-30 Tentative Ruling
Case Number: 23TRCV00606 Hearing Date: July 30, 2024 Dept: 8
Tentative Ruling¿
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HEARING DATE: July 30, 2024
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CASE NUMBER: 23TRCV00606
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CASE NAME: Alejandro Banuelos
v. Kia Forum, et al. .¿¿¿
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MOVING PARTY: Defendant/Cross-Defendant, ANM Industry
Group, LLC (DOE 1), erroneously sued as ABM Services, Inc. and ABM Industries,
Inc.
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RESPONDING PARTY: Plaintiff,
Alejandro Banuelos
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TRIAL DATE: January
27, 2025
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MOTION:¿ (1) ABM’s Motion for Summary Judgment, or in the alternative,
Summary Adjudication
Tentative Rulings: (1) GRANT, but allow argument by Plaintiff. ABM has met its initial summary judgment
burden and Plaintiff has not raised a material factual issues that needs to be
determined by the jury on the shifted burden, as to this one defendant
I. BACKGROUND¿¿
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A.
Factual¿¿
On March 1, 2024,
Plaintiff, Alejandro Banuelos (“Plaintiff”) filed a complaint against
Defendants, Kia Forum, KROQ-FM, Audacy California, LLC, and DOES 1 through 25.
The complaint alleges causes of action for: (1) Negligence; and (2) Premises
Liability. The complaint alleges that on December 10, 2022, Plaintiff was
attending a concert at Defendant, Kia Forum’s premises, put on by Defendants
KROQ-FM and Audacy California, LLC. (Complaint, ¶ 11.) Plaintiff notes that he
went to the bathroom, and descended a stairway leading to the bathroom when
Plaintiff suffered a fall. (Complaint, ¶¶ 12, 17.) Plaintiff alleges the
subject stairway created an unsafe condition and presented a substantial
hazard, including among other things, lacking proper safety measures, adequate
markings, slip resistance, proper fall arrest safeguards, and/or lighting.
(Complaint, ¶ 13.)
Now, Defendant/Cross-Defendant, ABM Industry
Groups, LLC (DOE 1), erroneously sued as ABM Services, Inc. and ABM Industries,
Inc. (“ABM”) files a Motion for Summary Judgment.
B.
Procedural¿¿
On May 13, 2024, ABM filed a Motion for Summary
Judgment. On July 16, 2024, Plaintiff filed an opposition brief. On July 25,
2024, ABM filed a reply brief.
II. EVIDENTIARY OBJECTIONS
ABM’s evidentiary objections
to Plaintiff’s Evidence:
Overrule: 1-9.
Sustain: none.
III. ANALYSIS¿
A.
Legal
Standard
The function of a motion for summary
judgment or adjudication is to allow a determination as to whether an opposing
party cannot show evidentiary support for a pleading or claim and to enable an
order of summary dismissal without the need for trial. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.) CCP Section 437(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.)¿ “The function
of the pleadings in a motion for summary judgment is to delimit the scope of
the issues; the function of the affidavits or declarations is to disclose
whether there is any triable issue of fact within the issues delimited by the
pleadings.”¿ (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67,
citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367,
381-382.)¿
As to each claim as framed by the
complaint, the defendant moving for summary judgment must satisfy the initial
burden of proof by presenting facts to negate an essential element, or to
establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005)
128 Cal.App.4th 1510, 1520. ) Courts “liberally construe the evidence in
support of the party opposing summary judgment and resolve doubts concerning
the evidence in favor of that party.”¿ (Dore v. Arnold Worldwide, Inc.¿(2006)
39 Cal.4th 384, 389.)¿
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 that cause of action or a defense thereto.¿¿¿
To establish a triable issue of material
fact, the party opposing the motion must produce substantial responsive
evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)
B.
Discussion
i.
Negligence
& Premises Liability
First, ABM argues that
Plaintiff cannot establish his first and second causes of action for negligence
and premises liability against ABM. Ordinarily, to state a cause
of action for general negligence, Plaintiff must allege: (1) existence of a
duty; (2) breach of that duty; (3) injury to Plaintiff caused by the breach;
and (4) actual damages. (Romero v. Los Angeles Rams (2023) 91
Cal.App.5th 562, 567.) Further, California law requires landowners to maintain
land in their possession and control in a reasonably safe condition. (Ann
M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.).)
The liability of landowners for injuries to people on their property is
governed by general negligence principles. (Pineda v. Ennabe (1998) 61
Cal.App.4th 1403, 1407 (Pineda).) A cause of action
for negligence requires (1) a legal duty owed to the plaintiff to use due care,
(2) breach of that duty, (3) causation, and (4) damage to the plaintiff.
(County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th
292, 318.) The existence of a legal duty is a question for the court to
determine, and “foreseeability is a ‘crucial factor’ in determining the
existence and scope of a legal duty.” (Delgado v. Trax Bar & Grill
(2005) 36 Cal.4th 224, 237, citing Ann M., supra, 6 Cal.4th at pp. 674,
676 (Delgado).) However, [A] high degree of foreseeability is required in order to find that
the scope of a landlord’s duty of care includes the hiring of security guards.
. . . [T]he requisite degree of foreseeability rarely, if ever, can be proven
in the absence of prior similar incidents of violent crime on the landowner’s
premises. To hold otherwise would be to impose an unfair burden upon
landlords and, in effect, would force landlords to become the insurers of
public safety, contrary to well established policy in this state.” (Ann
M., supra, 6 Cal.4th at p. 679, footnote omitted.) “Heightened
foreseeability is satisfied by a showing of prior similar criminal
incidents (or other indications of a reasonably foreseeable risk of violent
criminal assaults in that location) and does not require a showing of prior
nearly identical criminal incidents. (Delgado, supra, 36
Cal.4th at p. 245.)
Specifically, ABM argues that Plaintiff’s first and
second cause of action for negligence and premises liability fail because ABM
does not own the premises, and its duties as a vendor are defined by the
Agreement, which required ABM to sweep and mop floors and stairways and perform
other cleaning functions. However, ABM argues that Plaintiff’s allegations do
not implicate any liquid or debris on the subject stairway. The general rule—to
which there are numerous exceptions—is that the hirer of an independent
contractor is not liable to third parties for the contractor's negligence. (Millsap
v. Fed. Express Corp., 227 Cal. App. 3d 425, 430.) The most significant
factor in determining the existence of an employer-independent contractor
relationship is the right to control the manner and means by which the work is
to be performed. If control may be exercised only as to the result of the work
and not the means by which it is accomplished, an independent contractor
relationship is established. (Id.)
ABM has presented evidence of the Janitorial Services
Agreement (Declaration of Brian Grant (“Grant Decl.”), ¶ 2, Exhibit A.) The
Agreement indicates that ABM would “provide janitorial, day porters and related
services (the “Event Services”) for client before, during and after any
exhibition, event, contest, game, practice, sports activity, presentation,
meeting, assemblage, convention or other use (each an “Event”, collectively the
“Events”) as well as certain daily core cleaning services…all in accordance
with the scope of work [in] Exhibit A” of the Agreement.” (Grant Decl., Exhibit
A, ¶ 1.) The scope of work in this agreement includes cleaning as well as
ensuring the spaces were free of trash/debris. ABM argues that neither Plaintiff nor his
brother can identify where on the subject stairway the fall occurred to be able
to narrow down a specific defect or condition, and that they cannot supply evidence
of any liquid on the step or steps from which the claimed tumble down the stairs
occurred. In Plaintiff’s response to
Defendant Forum’s propounded Form Interrogatory, Set One, No. 17.1, Plaintiff
indicates that “The lighting was inadequate, the risers for each step [were]
too high, and the handrails were inadequate.” (Declaration of Briana M.
Pendergrass (“Pendergrass Decl.”), ¶ 9, Exhibit F.) Further, ABM cites to
Plaintiff’s verified response to Defendant Forum’s Special Interrogatory, Set
One, No. 13, where Forum asked: “If YOU contend that the INCIDENT was caused by
the condition of the stairs at the PREMISES, state all facts supporting YOUR
condition.” In response, Plaintiff stated, “[t]he lighting was inadequate, the
risers for each step [were] too high, and the handrails were inadequate.” ABM
further relies on Plaintiff’s brother’s deposition testimony, where he
testified that he did not recall whether the stairs were wet or had debris, or
even where on the subject stairway the fall occurred (Pendergrass Decl., ¶ 6,
Exhibit C.) The Incident Reports also notes
the condition of the incident area was “dry.”
The Court finds that ABM has carried its initial burden on an MSJ, such
that the burden is shifted to Plaintiff to raise a triable issue of material
fact from Plaintiff’s admissible evidence and/or from reasonable inferences to
be draw from the evidence before the Court on the motion.
In opposition, Plaintiff argues that there is evidence
that there was liquid on the subject stairway and the bathroom at the time of
the accident. (Declaration of Trevor Weinberg (“Weinberg Decl.”), ¶ 5, Exhibit
4.) The photographs appears to show shoeprints made in some liquid, on the
bathroom floor adjacent to the bottom of the steps. The floor of the bathroom also shows a
red-colored substance, which the Court can infer to be post-fall splatter of
Plaintiff’s own blood from his contact against the floor. Because the Agreement between ABM and the
Forum included janitorial duties such as mopping, the liquid on the bathroom floor
could fall into the categories of scope of work in the Agreement. Plaintiff argues that the photographs raise a triable
of issue of fact that there was a liquid, one that another concert-goer may have
tracked from the bathroom floor to the stairs, and up to the location where Plaintiff’s
brother testified the fall commenced. While
ABM argues in reply that it is speculative as to when the photographs were
taken, and that neither plaintiff’s brother nor Mr. Briones recalls seeing any
liquid or debris on the stairs or the bathroom floor, an inference could be arguably
drawn by the jury -- from the existence of water or some other liquid on the
bathroom floor approximately 30 minutes after the incident – that the liquid
was there at the time of the incident notwithstanding Briones’ incident report
noting the condition at the location was “dry.”
Those photographs by themselves do
not establish that the stairs may be slippery when wet, given the
slip-resistant nature of the stairs per ABM’s expert Mr. Wolfe. While Plaintiff argues that ABM’s expert only
conducted the slip-resistance test with water, and not other liquids, there is
no expert testimony bearing on proof that the liquid was anything else besides
water or that slip resistance testing of another liquid such as beer (which other
evidence before the Court shows was available inside the Forum during the concert)
would be more slippery on the stairs than water if tracked from the floor to the
stairs. The Court tentatively finds that
the photographs of a liquid and of footprints in the liquid, without opinion
testimony from a safety engineer or other expert that beer or water tracked
onto the stairs more likely than not made the stairs slippery enough to cause
or contribute to the Plaintiff’s fall, is not sufficient to overcome ABM’s
affirmative proof that the steps, even if wet, would not cause or contribute to
a fall on the stairs. Plaintiff’s evidence
thus does not persuade the Court that Plaintiff has carried his minimal shifted
burden.
Next, the Opposition argues that a triable issue of
fact is raised by Plaintiff’s expert analysis of the scene of the incident,
when compared with the opinion of the defense expert. ABM’s expert is Ned
Wolfe, P.E., a licensed mechanical engineer in California who is certified as
an XL tribometrist for measuring slip resistance of walking surfaces.
(Declaration of Ned Wolfe (“Wolfe Decl.”), ¶¶ 1-2.) Wolfe opines that even if
the subject stairway was wet, pursuant to the results of his slip testing, he
“established that the tread surfaces on the stairway have over double the safe
traction for pedestrian use.” (Wolfe Decl., ¶ 11.) When a defendant moves for summary judgment and
supports his motion with expert declarations that his conduct fell within the
community standard of care, he is entitled to summary judgment unless the
plaintiff comes forward with conflicting expert evidence.” (Munro v.
Regents of University of California (1989) 215 Cal.3d 977, 984-985.) Plaintiff does offer his own
expert declaration, from forensic expert Mark J. Burns. Mr. Burns testified by declaration that he
has a mechanical engineering degree as well as being a general building contractor
and certified accessibility inspector.
Mr. Burns states that he relied for his opinions on a number of things,
but not any of the depositions taken in the case (unless he meant to include the
cited deposition excerpts in the moving papers with his reference to having
read the supporting papers for ABM’s motion). Burns asserts that the treads and risers employed
at the Kia Forum stairway in question and its handrails are in violation of the
Building Code. But Mr. Burns only states possibilities in his
declaration when he draws a connection between the Building Code violations and
the causation of Plaintiff’s injury. The
Court notes the use of the verbs “may,” “could
have” or “could” in paragraphs 9 , 11, and 12.
The Court will take oral argument as to whether an opinion, to a reasonable
degree of engineering certainty, can create a triable issue of fact when the opinion
is that the identified Building Code deficiencies “may” create a hazard or “could”
lead to a fall. But there does not appear
to be any dispute that this moving defendant, ABM has no responsibility for
stairway, handrail, or riser construction or design, which seems the focus of Mr.
Burns’ opinions. The purported disputed
facts raised by the Burns Declaration are thus not MATERIAL facts versus this moving
defendant, ABM. The Court’s tentative ruling is that Mr.
Burns’ declaration does not create a triable issue of material fact in the face
of the affirmative proof presented by Mr. Wolfe’s declaration and testing.
As such, the Court’s tentative
ruling is to GRANT summary judgment as Plaintiff does not appear to have
evidence to carry his shifted burden in showing that triable issues of fact
exist as to ABM’s liability. However, the Court will allow oral argument from
the parties on this issue.