Judge: William A. Crowfoot, Case: 20STCV02586, Date: 2022-09-21 Tentative Ruling

Case Number: 20STCV02586    Hearing Date: September 21, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.       INTRODUCTION

          On January 21, 2020, Plaintiffs Heather Locker (“Locker”) and Benjamin Vandegreik (“Vandegreik”) (collectively, “Plaintiffs”) filed this action against Ipsilon, LLC dba Zebulon Concert Café (“Zebulon”) (erroneously sued as “Zebulon Café Concert”), John Doe, Mario Espinoza, and Obdulia Espinoza. Plaintiffs assert causes of action for assault, battery, intentional infliction of emotional distress, and negligent hiring, supervision, and retention. Plaintiffs allege that on January 22, 2019, they were harassed and physically attacked by security officers.

On September 30, 2020, Zebulon and the Espinozas (collectively, “the Zebulon Defendants”) filed a cross-complaint against John Doe and Diversified Protective Services, Inc. (“Diversified”). On June 1, 2021, the Zebulon Defendants named Albert Venegas (“Venegas”) and John Schimmel (“Schimmel”) as John Doe and Roe 1, respectively. On June 8, 2021, and July 1, 2021, Venegas and Diversified were also named as Doe 1 and Doe 3 by Plaintiff in her Complaint.

On December 21, 2020, Diversified filed a Cross-Complaint against Moes 1 through 20 for (1) express indemnity and duty to defend, (2) equitable indemnity, (3) breach of contract, (4) declaratory relief, and (5) apportionment of fault/contribution.

On June 16, 2022, Moving Defendants Zebulon and the Espinozas filed the instant motion for summary judgment of the Complaint in favor of Defendants and against Plaintiffs Vandegreik and Locker, or in the alternative summary adjudication of the fourth and fifth causes of action. Co-Defendants and Cross-Defendants Diversified, Schimmel, and Venegas oppose the motion as well as Plaintiffs.

II.      LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia 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.” (CCP § 437c(p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.)¿ The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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.” (CCP § 437c(p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “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.)

III.     STANDING

          As an initial matter, Co-Defendants and Cross-Defendants Diversified, Schimmel, and Venegas oppose the motion. However, as Moving Defendants point out, Co-Defendants lack standing to oppose the motion as the motion is not against them. Co-Defendants have no cross-claims against Moving Defendants. Thus, this opposition is disregarded as there is no standing for these co-defendants to oppose and all corresponding evidentiary objections are overruled as immaterial. Only Plaintiffs’ opposition is considered.

IV.     EVIDENTIARY OBJECTIONS

          Defendants’ evidentiary objections to Plaintiff’s evidence are OVERRULED.

Defendants object to the Declaration of Mr. Ramm, but, as discussed below, the Court found triable issues without reaching the Conditional Use Permit issue. Accordingly, the objections to Mr. Ramm’s declaration are overruled as immaterial. Nonetheless, the objections are overruled as to their merits as well. The bulk of Defendants’ argument for inadmissibility is that the CUP is not properly authenticated. However, the Court does not agree. Mr. Ramm obtained a copy of the document by going to the City of Los Angeles website and searching for the public records of this type. The CUP attached as Exhibit 2 is addressed to the parties, matches Mr. Ramm’s description, and appears to be a public record.

As to the objections to the Rofael declaration, the Court overrules the objections in part as immaterial and in part based on merit. Defendant attacks the deposition testimony of Schimmel arguing that it lacks foundation, lacks personal knowledge, speculation, and hearsay. However, read in context, the Court does not find that these objections have merit. As to objection 1, this part of the Soubiran deposition is immaterial to the decision. Objection 6 to the deposition of Venegas is immaterial to the decision. Lastly, the deposition testimony that is the subject of objection 2 is not speculative. The testimony deals with Soubiran’s expectations as the general manager.

V.      JUDICIAL NOTICE

          Moving Defendants’ request for judicial notice is GRANTED as records of the Court. (Evid. Code § 452(d).)

VI.     DISCUSSION

          Moving Defendants argue that the fourth cause of action for negligence fails because (1) Zebulon cannot be vicariously liable to Plaintiffs because Diversified was only its independent contractor over whom Zebulon exercised no control, (2) Zebulon cannot be vicariously liable to Plaintiffs as the conduct of Diversified’s workers fell outside of the scope of their alleged employment and was unforeseeable, and (3) the Espinozas did not exercise control over the subject premises.

          Further, Moving Defendant argues that the fifth cause of action for negligent hiring, supervision, and retention fails because (1) the conduct of Diversified’s workers fell outside of the scope of their alleged employment and was unforeseeable, (2) Zebulon had no prior knowledge of the security guards’ purported unfitness, and (3) the Espinozas did not exercise control over the subject premises.

a.   Zebulon

          Moving Defendants provide the following arguments and evidence: On January 22, 2019, two Diversified security guards were present at Zebulon—Venegas and Schimmel—to check patrons’ identifications and patrol the premises. (UMF 12, 24, 52.) At all times relevant, Mr. Venegas and Mr. Schimmel were employees of Diversified. (UMF 13, 25, 53.) Mr. Venegas’ and Mr. Schimmel’s duties at the subject premises were expressly limited to ensuring patrons at the venue were safe from harm in a peaceful manner, not to cause harm to them. (UMF 28.) The use of force was not something that was inherent in any of their responsibilities, nor was it something that should reasonably be expected to occur in a restaurant. (UMF 29.) On that evening, Mr. Venegas and Mr. Schimmel were overseeing the subject establishment to provide security services. (UMF 30.) That same evening, the Plaintiffs both arrived at Zebulon with a group of people. (UMF 31.) At 11:10 p.m., Plaintiffs’ group was standing in or around the entrance/exit of Zebulon’s bathroom – impeding other patrons from entering and exiting. (UMF 32) As a result, Plaintiffs’ group was asked by Diversified security guards to clear that area. (UMF 33) The Plaintiffs’ group appeared to clear the area directly near the bathroom door, however, continued to block the main pathway to the bathroom. (UMF 34.) Thereafter, Plaintiffs’ group took offense to the requests to clear a path and began to argue with and insult the security personnel, namely Mr. Venegas, who ultimately requested that the group leave the premises. (UMF 35.) While Plaintiffs began to leave the subject property, they continued to engage with the security personnel outside on the patio. (UMF 36.) Mr. Vandegreik and Mr. Venegas then engaged in fisticuffs, exchanging blows. (UMF 37.)

          Moving Defendants present evidence that they were unaware of any indication that Diversified guards could potentially pose a danger to others at the establishment. (UMFs Nos. 48-50.) They present evidence that Diversified employees were independent contractors, and not employees, of Zebulon per their agreement. (UMF Nos. 10, 46, 69.) Moving Defendants also did not exercise control over the manner and means of Diversified’s employees in the performance of their work, and the performance was left exclusively in the discretion of Diversified. (UMF Nos. 14-15, 54-55.) Zebulon also did not supervise, train, or hire the guards. (UMF Nos. 16, 27.)

          However, the Court is not persuaded that merely because the agreement states that Diversified employees are independent contractors that Zebulon exercised no control over them. It is hard to believe, however, that a club manager generally would not exercise control over how security personnel treat the patrons of the club, but whether that is the case under the circumstances here is a question of fact for the jury. Plaintiffs present evidence that, contrary to Defendants’ assertion, the security guards that night were specifically chosen by Zebulon and that Zebulon is picky about guards. (Deposition Pebley, pp. 20, 67.) Plaintiffs present the deposition testimony of Mr. Soubiran, the owner and manager of Zebulon, showing that the manager makes the decision about whether a patron should be removed from Zebulon. Mr. Soubiran remembers discussing the “rules” about how to conduct security at Zebulon with Diversified. On the night of the subject incident, Mr. Soubiran told Albert or John that it was time for those people to leave. Mr. Soubiran expected that if he told the security guards to move a person from the premises, they would do it. (Deposition Soubiran, 72:9-73:2; 95:5-96:2; 125:13-19.) Plaintiffs also present the deposition testimony of Mr. Schimmel. Mr. Schimmel testified that Mr. Soubiran told him he wanted him to clear the pathway to the bathroom. Mr. Schimmel testified that he approached Plaintiffs and their other friends and asked them to move to another location. They moved just a few feet away. Mr. Schimmel approached them again and asked them to move again. Mr. Schimmel asked Mr. Soubiran “what do you want me to do with these people? They are getting disrespectful.” Mr. Schimmel testified that Mr. Soubiran said “Throw them out. Throw them out.” (Deposition Schimmel, 49:8-9; 49:14-19; 50:14-20; 52:4-6.) Mr. Schimmel testified that it was not up to him and Mr. Venegas on how to deescalate the situation and get them off the premises. He was following the orders of the owner. Further, Mr. Schimmel was told by Mr. Soubiran to tell them to leave and testified it wasn’t under their discretion. (Deposition Schimmel, 80:20-81:9, 87:13-88:18.) Mr. Schimmel testified he was thinking it might get physical and took the instructions in a sense that if it gets there, go ahead and take care of it. (Deposition Schimmel, 148:24-149:16.) Based on this evidence, there appears to be a triable issue of fact for the jury to determine whether Zebulon exercised control over the security guards’ actions in removing Plaintiffs and may have even directed them on how to manage the situation. Accordingly, there are triable issues as to control, foreseeability, and scope of employment.

          As there are triable issues and Moving Defendants’ have not negated an element of the causes of action, the Court need not reach the Conditional Use Permit issue. Nonetheless, as the Court has overruled the objections to Mr. Ramm’s declaration primarily based on the admissibility of the CUP, Plaintiffs also create a triable issue as to Defendants’ negligence and causation by way of Mr. Ramm’s expert declaration attesting to such based on non-compliance with the CUP. (See Ramm Declaration.) Although Defendants rebut this argument by showing that Diversified’s contract with Zebulon required a licensed guard, there is evidence that Zebulon retained some control in choosing the guards as discussed above. While this weakens Mr. Ramm’s expert opinion, there appears to still be a triable issue for the jury as to the negligence in selection of guards.

          The motion is DENIED as to Zebulon.

b.   Espinozas

As to the Espinozas, the landlords, Moving Defendants argue that they did not exercise control over the subject premises as they had leased it to Zebulon for their restaurant and they were not involved in the operations or security of the property. (UMF Nos. 66-70.) Defendants present the Declaration of Mr. Soubiran, the owner and manager of Zebulon, who attests that he entered into an agreement with the Espinozas on behalf of Zebulon to rent the subject property as a café/bar with live music. (Soubiran Decl., ¶2.) On behalf of Zebulon, Soubiran alone entered into a contract with Diversified to retain the services of a licensed security company for the real property. (Id., at ¶3.) He attests that the Espinozas have no ownership interest in Zebulon, they do not exercise control over or supervise Zebulon, and they were not present at the property on the date of the subject incident. (Id., at ¶4.)

Plaintiffs do not present any argument or evidence to rebut this. As the mere landlord with no control of the premises, it appears there is no liability on their part. Without any contrary evidence, the motion is GRANTED as to the Espinozas.

VI.     CONCLUSION

The motion is DENIED as to Zebulon and GRANTED as to the Espinozas.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.