Judge: William A. Crowfoot, Case: BC677170, Date: 2022-08-26 Tentative Ruling

Case Number: BC677170    Hearing Date: August 26, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On September 25, 2017, Plaintiff Sohrab Mohammed Payind (“Plaintiff”) filed a complaint against Defendants Hakkasan Limited dba Bootsy Bellows Nightclub, Hakkasan Group, Hakkasan LV LLC (“Hakkasan LV”), Hakkasan Holdings, Hakkasan USA, Inc., BToll Entertainment LLC, and Does 1 to 50 for premises liability and general negligence. 

On April 30, 2019, Plaintiff added John Terzian (“Terzian”), Hakkasan SF, LLC, and Brian Toll (“Toll”) as Does 1, 2, and 3, respectively

On May 13, 2019, Plaintiff filed an amendment to complaint correcting Hakkasan Limited dba Bootsy Bellows Nightclub’s name to Hakkasan Group dba Bootsy Bellows Nightclub. 

On September 29, 2020, Plaintiff filed an amendment to complaint, substituting in Defendant DBDJ, LLC for Doe 4.

On November 9, 2021, the Court granted DBDJ, LLC’s motion to quash service of summons and dismissed DBDJ, LLC from this action.

On January 25, 2022, pursuant to Plaintiff’s request, Hakkasan Limited, Hakkasan LV, Hakkasan SF, LLC, and Hakkasan Holdings were dismissed from this action.

On April 29, 2022, Defendants Terzian and Toll (collectively “Defendants”) filed a motion for summary judgment or, in the alternative, summary adjudication.  Plaintiff filed opposition papers on July 1, 2022.  Defendants filed reply papers on August 19, 2022.

II.          FACTUAL BACKGROUND

On September 27, 2015, at or near 9229 Sunset Blvd in West Hollywood, CA, Defendants failed to exercise ordinary care to avoid or prevent the accident that occurred, resulting in injuries to Plaintiff.  (Complaint, Prem.L-1, GN-1; Opposition, Plaintiff’s Response to Separate Statement of Undisputed Material Facts, No. 1.)

III.        LEGAL STANDARD

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.”  (Code Civ. Proc., § 437c, subd. (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.”  (Code Civ. Proc., § 437c, subd. (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.)

IV.         DISCUSSION

Request for Denial or Continuance

In opposition, Plaintiff requests the Court either deny or continue this motion for summary judgment by 90 days to allow Plaintiff the right to complete discovery. 

CCP section 437c(h) provides that “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other orders as may be just.”  (Code Civ. Proc., § 437c, subd. (h).)  A summary judgment is a drastic measure which deprives the losing party of trial on the merits.  (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395.)  To mitigate this harshness, the drafters of CCP section 437c included a provision making continuances virtually mandated.  (Id.)  Where the opposing party submits an adequate affidavit showing that essential facts may exist but cannot be presented in a timely manner, the Court must either deny summary judgment or grant a continuance.  (Dee v. Vintage Petroleum, Inc. (2003) 106 Cal.App.4th 30, 34-35.)

“The nonmoving party seeking a continuance must show: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts.  [Citations.]”  (Wachs v. Curry (1993) 13 Cal.App.4th 616, 623.)  If these factors are met, a continuance is mandatory.  (Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 127.)  “It is not sufficient under [CCP section 437c(h)] merely to indicate further discovery or investigation is contemplated.”  (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.)

Here, Plaintiff’s counsel’s declaration provides that Plaintiff propounded written discovery on each moving defendant on or about April 18, 2022; that Defendants responded to the discovery and objected to everything on May 10, 2022; that defense counsel did not respond to the letter or call Plaintiff to engage in the meet and confer process; and that, without substantive responses, Plaintiff has been denied information likely to lead to admissible evidence to rebut Defendants’ contentions.  (Opposition, Karimian Decl., ¶ 5.)  Plaintiff’s counsel also declares that Plaintiff noticed the depositions of moving defendants; that Defendants objected to the notices; that defense counsel advised she would get available dates for the depositions; and that, to date, that has not occurred.  (Id., ¶ 6.)

Plaintiff’s counsel’s declaration does not set forth the requisite facts to be obtained that are essential to opposing the motion and that there is reason to believe such facts may exist.  (Wachs, supra, 13 Cal.App.4th at 623.)  Plaintiff has thus failed to meet the factors for a denial or continuance of this motion for summary judgment.

The Court notes that, as pointed out by Defendants in reply, Plaintiff named Defendants two years after filing this action in September 2017—i.e., Defendants were brought into this action in 2019.  There is no explanation as to why Plaintiff appears to have waited until just a four months ago to obtain discovery from Defendants.  The Court may also deny the request for continuance under these circumstances.  (Bahl, supra, 89 Cal.App.4th at 398 (“When lack of diligence results in a party’s having insufficient information to know if facts essential to justify opposition may exist, and the party is therefore unable to provide the requisite affidavit under Code of Civil Procedure section 437c, subdivision (h), the trial judge may deny the request for continuance of the motion.”).) 

The Court further notes that, while a review of the complaint and Plaintiff’s opposition fails to clarify the specific theory of liability asserted against Defendants, it appears from Plaintiff’s June 15, 2022, meet and confer letter sent to defense counsel that Plaintiff is attempting to assert alter ego liability against Defendants with respect to DBDJ, LLC.  (Opposition, Karimian Decl., ¶ 5, Ex. C.)  No alter ego liability has been asserted against Defendants in the complaint.  To this extent, any discovery Plaintiff is seeking with respect to whether Defendants are alter egos of DBDJ, LLC cannot be said to be essential to opposing this motion for summary judgment.  (Hutton v. Fidelity National Title Company (2013) 213 Cal.App.4th 486, 493 (“[T]he burden of a defendant moving for summary judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (emphasis in original)).)

In light of the foregoing, Plaintiff’s request for a denial or continuance of this motion is denied.

Motion for Summary Judgment

Defendants move for summary judgment in their favor and against Plaintiff on the premises liability and general negligence causes of action asserted against them in the complaint.

A.   First Cause of Action for Premises Liability

“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.)  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.)  

Here, Plaintiff alleges defendants “did not exercise ordinary care, caution or prudence to avoid or prevent the accident described in said complaint, and that said accident and injuries sustained by plaintiff were actually and proximately caused by said fault, carelessness and negligence of defendants and each of them named in the complaint.”  (Complaint, Prem.L-1.)  While Plaintiff has alleged how the other defendants named in this action are specifically liable for premises liability, Plaintiff has failed to plead facts showing how Defendants, who were substituted in as Does 1 and 3, are specifically liable for premises liability.  However, given that this is a premises liability claim, it can be reasonably inferred that Plaintiff seeks to hold Defendants liable for premises liability as owners, possessors, or controllers of the property where the subject accident occurred. 

Defendant contends this cause of action fails because they did not own, manage, or control the property.  To support this contention, Defendants have submitted their own declarations attesting that they did not personally own, lease, maintain, manage, operate, or control the subject premises on September 27, 2015.  (Toll Decl., ¶ 3; Terzian Decl., ¶ 3.)  This is sufficient for Defendants to meet their burden of demonstrating they cannot be liable as owners, possessors, or controllers of the property where the subject accident occurred.

Although Plaintiff has submitted an opposition, Plaintiff’s opposition merely requests a denial or continuance of this motion.  Plaintiff has not presented evidence demonstrating triable issues of material fact exist as to whether Defendants owned, possessed, or controlled the property.  Plaintiff has thus failed to meet his burden.

Accordingly, Defendants are entitled to judgment on the first cause of action for premises liability.

B.   Second Cause of Action for General Negligence

The elements for negligence are: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to plaintiff.  (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

Like with the premises liability cause of action, Plaintiff alleges defendants “did not exercise ordinary care, caution or prudence to avoid or prevent the accident described in said complaint, and that said accident and injuries sustained by plaintiff were actually and proximately caused by said fault, carelessness and negligence of defendants and each of them named in the complaint.”  (Complaint, GN-1.)  Plaintiff fails to allege facts showing how Defendants are specifically liable for general negligence.  However, given Plaintiff alleges the same allegations against Defendants for this cause of action as with the premises liability cause of action, it appears Plaintiff is also seeking to hold Defendants liable for general negligence as owners, possessors, or controllers of the property where the subject accident occurred.  Plaintiff’s opposition does not indicate otherwise.  In fact, the facts regarding the incident as set forth in Plaintiff’s opposition (i.e., that Plaintiff was a patron at the Bootsy Bellows Nightclub on September 27, 2015, and was injured when he stepped on a piece of broken glass that penetrated his shoe) tends to show that the only viable theory of liability against Defendants for the subject accident is as owners, possessors, or controllers of the property where the accident occurred.  (Opposition, p. 3: 4-5.)  To the extent Plaintiff is attempting to hold Defendants liable on an alter ego theory, as discussed, Plaintiff has failed to plead such a theory against Defendants in the complaint.

As with the premises liability cause of action, Defendants argue the general negligence cause of action fails because they did not own, manage, or control the property where the subject accident occurred.  Defendants’ declarations that they “did not personally own, lease, maintain, manage, operate or control the premises located at 9229 Sunset Blvd. in West Hollywood, California on Sept. 27, 2015” are sufficient for Defendants to meet their burden of demonstrating they did not own, manage, or control the property where the subject accident occurred.  (Toll Decl., ¶ 3; Terzian Decl., ¶ 3.)

As discussed, while Plaintiff has filed an opposition, Plaintiff has failed to present evidence demonstrating triable issues of material fact exist.  Plaintiff has thus failed to meet his burden.

Accordingly, Defendants are entitled to judgment on the second cause of action for general negligence.

As Defendants are entitled to judgment on both causes of action asserted in the complaint, Defendants are entitled to summary judgment.

          Motion for Summary Adjudication

          As Defendants are entitled to summary judgment, Defendants’ alternative motion for summary adjudication is moot.

VI.     CONCLUSION

          In light of the foregoing, Defendants’ Motion for Summary Judgment is GRANTED.

          Defendants’ alternative Motion for Summary Adjudication is MOOT.

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.