Case Number: 21STCV17952    Hearing Date: March 9, 2023    Dept: 73

Laurie Encinas, et al., v. Hikari Japanese Restaurant, et al., (21STCV17952)

Counsel for opposing party: No opposition.

Counsel for Defendant/moving party:  Gregory K. Lee and Ashan K. Peiris (Wilson, Elser, Moskowitz, Edelman, and Dicker)

mOTION FOR SUMMARY JUDGMENT filed by Defendant Universal Protection Service, LP on 11/17/2022

TENTATIVE RULING

Defendant Universal Protection Service, LP’s Request for Judicial Notice No. 1 is GRANTED.

Defendant Universal Protection Service, LP’s Motion for Summary Judgment is GRANTED.

Discussion

On May 13, 2021 Plaintiff Lauri Encinas and Jesus Encinas (collectively “Plaintiffs”) filed a Complaint asserting causes of action for (1) general negligence and (2) premises liability against Jhoon, Inc. (sued as Hikari Japanese Restaurant aka Sake House by Hikari aka Hikari Sushi Bar) (“Jhoon”) and UBS Realty Investors, LLC (“UBS”).  This matter arises from a trip and fall incident, which resulted from a raised threshold in the patio of Jhoon’s restaurant.

On June 15, 2021 Montebello Town Center Investors, LLC (“MTCI”) was substituted in as Doe 1.

On June 25, 2021, Jhoon filed a Cross-Complaint against Roes 1-100 for equitable indemnity and apportionment of fault.

On July 2, 2021, MTCI filed a Cross-Complaint against Roes 1-25 for equitable indemnity, contribution, and declaratory relief.

On September 7, 2021, Universal Protection Service, LP (“Universal”) was substituted in for Doe 3.

On November 18, 2021, Montebello Mall Management PR, LLC (“MMM”) was substituted in for Doe 6.

On November 24, 2021, Universal filed a Cross Complaint against Roes 1-20 for equitable indemnity, declaratory relief, express contractual indemnity.

On December 29, 2021, Simon Management Associates (California), Inc. was substituted in as Doe 7.

On May 4, 2022, MMM filed a Cross-Complaint against MTCI, Jhoon, and Simon for contractual indemnity, equitable indemnity, and declaratory relief.

On November 17, 2022, Universal (hereinafter referred to as “Defendant”) filed a Motion for Summary Judgment, arguing:

·                     Defendant did not owe Plaintiffs a duty.

·                     To the extent Defendant owed a duty, any such breach of that duty was not a substantial factor in Plaintiffs’ damages.

·                     Defendant did not own, possess, or control the premises where Plaintiffs were injured.

There is no opposition to the Motion.

ANALYSIS

A.      Legal Standard for Motion for Summary Judgment

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.)  Code of Civil Procedure (“CCP”) section 437c(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 moving party must satisfy the initial burden of proof by presenting facts proving the essential elements of a cause of action, negating the essential elements of a cause of action, or establishing 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 moving party has met that burden, the burden shifts to the opposing party 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

The elements of¿a premises liability and¿negligence¿cause of action are the same:¿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 condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for [visitors’] 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.)  The existence and scope of a property owner’s duty are legal questions for the court.  (Annocki,¿supra, 232 Cal.App.4th at p. 36.)¿¿ 

“‘[P]roperty¿owners are liable for injuries on land they own, possess, or control.’ But . . . the phrase ‘own, possess,¿or¿control’ is stated in the alternative. A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.”  (Alcaraz v. Vece¿(1997) 14 Cal.4th 1149 internal citations omitted.)  “The crucial element is control.” (Salinas v. Martin¿(2008) 166 Cal.App.4th 404, 414.)  The courts “have placed major importance on the existence of possession and control as a basis for tortious liability for conditions on the land.” (Ibid.) 

Defendant contends that it did not owe Plaintiffs a duty and cannot be held liable because the subject contract between it and MTCI was for security guard services to provide indoor and outdoor patrol of the common areas of the Montebello Town Center Mall (the “Mall”).  (Def. UMF Nos. 8-9.)  In support, Defendant submits the subject contract between Defendant and MTCI, which shows that Defendant was not required to inspect the tenant spaces at the Mall, including Jhoon’s restaurant where Plaintiffs’ injuries arose.  (Id.)  Under the contract, Defendant was required to patrol and inspect the common areas of the Mall, such as the sidewalks, walkways, parking lots, etc.  (Id.)  Defendant did not have a duty to observe and report conditions within the tenant spaces at the Mall.  (Def. UMF Nos. 8-11 )  Defendant also provides evidence that it did not own, lease, occupy, or control the patio where Plaintiffs’ injury arose.  (Def. UMF Nos. 14-15.) The incident occurred within the restaurant, not in a common area.  Defendant carried its initial burden on this motion to negate a duty.  

Accordingly, Defendant has provided sufficient evidence that there is no basis to establish a duty as to Plaintiffs or that it owned, possessed the subject premises.  This shifts the burden to opposing parties to offer evidence to establish a triable issue of material fact that Defendant owed Plaintiffs a duty.

There is no opposition to Defendant’s Motion.

The Court notes that Defendant moves for summary judgment as to Plaintiffs’ cause of action for loss of consortium, and, had Plaintiffs pled a cause of action for loss of consortium, that cause of action would be dependent on Plaintiffs’ general negligence and premises liability causes of action, which as discussed above have failed.  (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927 [“A cause of action for loss of consortium is, by its nature, dependent on the existence of a cause of action for tortious injury to a spouse.”])  However, Plaintiffs did not plead loss of consortium as a separate cause of action, but, instead, included allegations regarding loss of consortium within the allegations for their general negligence cause of action.  Thus, the Court need not analyze loss of consortium any further. 

Thus, Defendant’s Motion for Summary Judgment is GRANTED.

Laurie Encinas, et al., v. Hikari
Japanese Restaurant, et al., (21STCV17952)

Counsel for Defendants/opposing party:
James P. Hart Jr. (Law Offices of Schneider, Holtz, and Hutchison) and Cheryl
A. Kirkpatrick and Fang Li (Horton, Oberrecht, and Kirkpatrick)

Counsel for Defendant/moving
party:  Stephen T. Pelletier and Joseph
J. Kagan (Price Pelletier, LLP)

mOTION FOR SUMMARY JUDGMENT filed
by Defendant Simon Management Associates, Inc. on 12/21/2022

TENTATIVE
RULING

Defendant Simon
Management Associates (California), Inc.’s Objection No. 1 is SUSTAINED.  In light of the ruling to Objection No. 1,
Defendant’s
Objections Nos. 2-6 are MOOT.

Defendant Simon
Management Associates (California), Inc.’s Motion for Summary Judgment is
GRANTED.

Discussion

On May 13, 2021 Plaintiff Lauri
Encinas and Jesus Encinas (collectively “Plaintiffs”)
filed a Complaint asserting causes of action for (1) general negligence and (2)
premises liability against Jhoon, Inc. (sued as Hikari Japanese Restaurant aka
Sake House by Hikari aka Hikari Sushi Bar) (“Jhoon”) and UBS Realty Investors, LLC (“UBS”).  This matter arises from a trip and fall
incident, which resulted from a raised threshold in the patio of Jhoon’s
restaurant.

On June 15, 2021 Montebello Town
Center Investors, LLC (“MTCI”) was substituted in as Doe 1.

On June 25, 2021, Jhoon filed a
Cross-Complaint against Roes 1-100 for equitable indemnity and apportionment of
fault.

On July 2, 2021, MTCI filed a
Cross-Complaint against Roes 1-25 for equitable indemnity, contribution, and
declaratory relief.

On September 7, 2021, Universal
Protection Service, LP (“Universal”)
was substituted in for Doe 3.

On November 18, 2021, Montebello Mall
Management PR, LLC (“MMM”) was substituted in for Doe 6.

On November 24, 2021, Universal filed
a Cross Complaint against Roes 1-20 for equitable indemnity, declaratory
relief, express contractual indemnity.

On December 29, 2021, Simon Management
Associates (California), Inc. was substituted in as Doe 7.

On May 4, 2022, MMM filed a
Cross-Complaint against MTCI, Jhoon, and Simon for contractual indemnity,
equitable indemnity, and declaratory relief.

On
December 21, 2022, Simon (hereinafter referred to as “Defendant”) filed a Motion for Summary
Judgment, arguing:

·                    
Defendant did not owe Plaintiffs a
duty.

·                    
To the extent Defendant owed a duty,
any such breach of that duty was not a substantial factor in Plaintiffs’ damages.

·                    
Defendant did not own, possess, or
control the premises where Plaintiffs were injured.

In
opposition, MTCI and Jhoon argue that:

·                    
MTICI: Defendant owed a duty to
Plaintiffs to inspect the subject premises properly when it was remodeled in
2018 when Defendant was still the property manager.

·                    
Jhoon: Pursuant to the leasing
agreement, Defendant is required to indemnify Jhoon in connection with any
alterations relating to the subject premises.

In reply, Defendant argues:

·                    
Defendant cannot be held liable
because it did not own, manage, control, operate, lease, or control the subject
premises for approximately 2.5 years before the incident occurred.  Defendant no longer owed a duty after the
subject lease ended.  A new management
company was hired and assumed management, possession, and control of the
subject premises.

Plaintiff did not file an
opposition. 

ANALYSIS

A.      Legal
Standard for Motion for Summary Judgment

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.)  Code of Civil
Procedure (“CCP”) section 437c(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 moving party must satisfy the initial burden of proof by
presenting facts proving the essential elements of a cause of action, negating
the essential elements of a cause of action, or establishing 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 moving party has met that
burden, the burden shifts to the opposing party 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

The elements of¿a premises liability
and¿negligence¿cause
of action are the same:¿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
condition exists, the property owner is “under
a duty to exercise ordinary care either to make the condition reasonably safe
for [visitors’]
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.)  The existence and
scope of a property owner’s
duty are legal questions for the court.  (Annocki,¿supra,
232 Cal.App.4th at p. 36.)¿¿ 

“‘[P]roperty¿owners are liable for injuries on
land they own, possess, or control.’
But
. . . the phrase ‘own,
possess,¿or¿control’
is
stated in the alternative. A defendant need not own, possess and control
property in order to be held liable; control alone is sufficient.”  (Alcaraz
v. Vece¿(1997) 14 Cal.4th 1149 internal citations omitted.) 
“The crucial element is control.” (Salinas v. Martin¿(2008)
166 Cal.App.4th 404, 414.)  The courts “have
placed major importance on the existence of possession and control as a basis
for tortious liability for conditions on the land.” (Ibid.) 

Defendant contends that it cannot be
held liable because it did not own, manage, control, lease, occupy, or operate
the Shops at Montebello (the “Mall”), which is owned by MTCI, where
Jhoon’s
restaurant is located, where the incident occurred.  (Def. UMF Nos. 1-8)  On February 1, 2011, MTCI and Defendant
entered into a management and leasing agreement for the Mall, which was
terminated on October 22, 2018.  (Def.
UMF Nos. 1-3.)  On December 31, 2018,
Defendant ceased all management activities of the Mall, and Defendant had not
control over the Mall thereafter.  (Def.
UMF. No. 4-6.)  The trip and fall occurred
on March 7, 2021, at Jhoon’s
restaurant, and Defendant had not managed the Mall for approximately 2.5
years.  (Def. UMF Nos. 3-8.)

Defendant also points the Court to Lewis v. Chevron (2004) 119 Cal.App.4th 690 and Preston v. Goldman (1986) 42 Cal.3d
108 which stand for the proposition that, absent concealment, a prior owner of
real property cannot be held liable for injuries caused by a patent defective
condition on the property after ownership and control has been relinquished, even
if the prior owner negligently created the condition.  (See Lewis, supra, 119 Cal.App.4th at
699 [“The only potentially applicable
exception regarding injuries to persons on the land ‘is that the vendor is under a duty to
disclose to the vendee any hidden defects which he knows or should know may
present an unreasonable risk of harm to persons on the premises, and which he
may anticipate that the vendee will not discover.’”]  (Emphasis added, citations omitted.))

Accordingly, Defendant has presented
sufficient evidence to show that it did not owe Plaintiffs a duty because it
did not own, possess, or control the Mall where Jhoon’s restaurant is located and where
Plaintiffs’ injury
occurred.  This shifts the burden to the
opposing parties to offer evidence to establish a triable issue of material
fact that Defendant did owe a Plaintiffs a duty because it owned, possessed, or
controlled the Mall.

MTCI contends, in relevant part, that
Defendant owed a duty to inspect the patio where Plaintiffs’ injury
occurred, in 2017, when Defendant was still the manager of the Mall.  MTCI further contends that Defendant cannot
rely on Lewis and Preston because Defendant is not the owner of
the Mall.

The Court finds Lewis and Preston
as instructive.  As a preliminary matter,
MTCI fails to offer any evidence that Defendant owned, possessed, or controlled
the Mall or subject premises where Plaintiffs’ injury occurred.  In addition, while the Court recognizes that Lewis
and Preston are based on cases where the defendants were prior
landowners, that distinction is without a meaningful difference.  Premises liability cases are grounded in the
ownership, possession, or control of the subject premises at the time of the
subject injury.  (Kesner v. Superior
Court (2016) 1 Cal.5th 1132, 1158–1159.)  As stated above, MTCI fails to offer any
evidence that Defendant owned, possessed, or controlled the Mall, where the
subject premises was located, at the time of Plaintiffs’ injuries.  Instead, MTCI asks the Court to hold
Defendant liable for Plaintiffs’
injuries
on the grounds that Defendant managed the Mall approximately 2.5 years before
the subject incident.  MTCI does not make
any argument or provide evidence that the alleged defect leading to Plaintiffs’ injuries
was latent, or that Defendant concealed the defect.  Here, the alleged defect is patent and not
latent, as it was a raised threshold located in the patio area of Jhoon’s restaurant.  (Pl.
UMF Nos. 1-2; Lewis v. Chevron
U.S.A., Inc. (2004) 119 Cal.App.4th 690, 697
[A patent defect is one that can be discovered by such an inspection as would
be made in the exercise of ordinary care and prudence.])  MTCI (any company that managed the Mall
thereafter or Jhoon) had duty to a duty to¿exercise ordinary care in managing
the subject premises¿to¿avoid exposing Plaintiffs to an unreasonable risk of
harm after Defendant no longer managed the Mall, and it cannot claim that its
duty is excused because Defendant managed the Mall 2.5 years before to the
subject incident.  Furthermore, the closeness
of Defendant’s
conduct and Plaintiffs’
injuries,
in regard to foreseeability, is attenuated, as Defendant did not have any
control over the Mall after it ceased all management activities on December 31,
2018.  (Salinas, supra, 166
Cal.App.4th at 414 [“The crucial element is control.”]  MTCI is essentially asking the Court to hold
Defendant liable in perpetuity for any injuries that arise from a patent defect
that existed while MTCI had a duty to¿exercise ordinary care in managing the
subject premises¿to¿avoid exposing Plaintiffs to an unreasonable risk of
harm.  At the time of the incident, MTCI
(any company that managed the Mall thereafter or Jhoon) were the only parties
that were in control of the circumstances and had the power to make changes, take
needed precautions, and control the entry of persons on the land.  (Lewis, supra, 119 Cal.App.4th
at 697.)  Accordingly, MTCI has failed to
create a triable issue of fact that Defendant owed Plaintiffs a duty.

The Court notes that there remains the
question as to whether Defendant may be required to indemnify MTCI and Jhoon,
pursuant to any relevant agreements, but that analysis is outside of the scope
of Plaintiffs’ Complaint
and this Motion.

The Court further notes that Defendant
moves for summary judgment as to Plaintiffs’ cause of action for loss of
consortium, and, had Plaintiffs pled a cause of action for loss of consortium,
that cause of action would be dependent on Plaintiffs’ general negligence and premises
liability causes of action, which as discussed above have failed.  (Vanhooser v. Superior Court (2012) 206 Cal.App.4th 921, 927 [“A
cause of action for loss of consortium is, by its nature, dependent on the
existence of a cause of action for tortious injury to a spouse.”])  However, Plaintiffs did not plead loss of
consortium as a separate cause of action, but, instead, included allegations
regarding loss of consortium within the allegations for their general
negligence cause of action.  Thus, the Court
need not analyze loss of consortium any further. 

Thus, Defendant’s
Motion for Summary Judgment is GRANTED. Moving party to give notice and submit
a proposed judgment with five days.