STEPHANIE KAGEL VS GLAD ASSOCIATES

Case Number: BC596994 Hearing Date: June 25, 2018 Dept: 4

MOVING PARTY: Defendants Kor Fitness Gym and Kenneth Chu Lee

RESPONDING PARTY: Plaintiff Stephanie Kagel

Motion for Summary Judgment

The court considered the moving, opposition, and reply papers.

BACKGROUND

On October 7, 2015, plaintiff Stephanie Kagel filed a complaint against defendants Barbara Smith dba Glass Associates, Kor Fitness Gym, and Kor’s sole shareholder Kenneth Chu Lee for premises liability and negligence based on a trip and fall incident on November 20, 2013. Defendants Kor and Lee move for summary judgment.

LEGAL STANDARD

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

“On a motion for summary judgment, the 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). “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). “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.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c). “’An issue of fact can only be created by a conflict in the evidence. It is not created by speculation, conjecture, imagination or guesswork.’” Lyons v. Security Pacific National Bank (1995) 40 Cal. App. 4th 1001, 1014 (citation omitted).

DISCUSSION

Defendants Kor and Lee request that the court enter summary judgment in their favor and against plaintiff pursuant to CCP § 437c on the ground that there is no triable issue of material fact and defendants are therefore entitled to judgment as a matter of law.

In the complaint, plaintiff alleges that, on November 20, 2013, she tripped and fell at the subject premises at 815 N. La Brea Ave, Los Angeles, as a result of dangerous and defective conditions on the premises. Complaint, pg. 4.

Civil Code § 1714(a) states, in part: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property . . . .” 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 (citing Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1205; Civil Code § 1714(a)). “As a general rule, each person has a duty to use ordinary care and is liable for injuries caused by his failure to exercise reasonable care in the circumstances.” Romero v. Superior Court (2001) 89 Cal. App. 4th 1068, 1080 (citation omitted) (internal quotations omitted). A landowner has a duty of ordinary care in the management of his or her premises in order to avoid exposing persons to an unreasonable risk of harm. Scott v. Chevron U.S.A. (1992) 5 Cal. App. 4th 510, 515; Brooks v. Eugene Burger Management Corporation (1989) 215 Cal. App. 3d 1611, 1619.

It is undisputed that in 2002, defendant Kor subleased the building, 815 N. La Brea Ave, Los Angeles, California, from defendant Smith. Separate Statement Nos. 28. In 2011, Kor signed a Lease Agreement with Smith. Separate Statement No. 29. As part of the Agreement, Kor, the lessee, was to maintain the condition inside the Premise, including, keeping the glass, windows and doors in an operable and safe condition. Separate Statement No. 30. Smith, the lessor, is to maintain the roof, foundation, exterior walls and common area. Separate Statement No. 31.

It is undisputed that the raised concrete incline and attached ramp at the back of the building existed prior to Kor’s tenancy. Separate Statement No. 32.

It is undisputed that plaintiff was and is an independent personal trainer, who had been using the facilities at KOR for a fee to train her clients since 2006. Separate Statement No. 5.

It is further undisputed that during those years, plaintiff used both the front and back doors of Kor for entry and exits, specifically recalling using the back door more than 100 times prior to the incident. Separate Statement No. 6.

Defendants contend they owed no duty to plaintiff relating to the concrete

incline because, they were not, and are not, the owners of the property to which the concrete incline is situated, nor have any control or management authority over the concrete incline.

Defendants further contend that they were not made aware of any defects relating to the

construction or the management of the raised concrete incline prior the incident. Separate

Statement No. 35. Defendants further contend the concrete incline was, and is, open and obvious as a defense against premise liability.

Evidentiary Objections

A Court must rule on individual objections only when they are timely and in the proper form. Demps v. San Francisco Housing Authority (2007) 149 Cal. App. 4th 564, 578. All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Cal. Rules of Court, rule 3.1354(b).

Here, plaintiff objected to various parts of defendant’s separate statement within the separate statement itself in violation of rule 3.1354, subdivision (b). Therefore, the court declines to rule on plaintiff’s objections.

Whether Defendants Can be Held Liable

Defendants seek summary judgment on the ground that they do not owe a duty to the plaintiff since they did not, and do not own, possess, or have control over the concrete incline or the area around the concrete incline, including, but not limited to the attached ramp pursuant to their lease agreement with Smith.

In order to establish a cause of action for premises liability, a plaintiff must show (1) that defendant owned, leased, occupied or controlled the property, (2) defendant was negligent in the use, maintenance or management of premises, (3) the plaintiff was harmed, and (4) the defendant’s negligence was a substantial factor in causing plaintiff’s harm. Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619 [premises liability is a form of negligence]; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37 [“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.”].

Here, defendants contend that pursuant to the lease agreement between them and defendant Smith, Kor, the lessee, was to maintain the condition inside the Premise, including, keeping the glass, windows and doors in an operable and safe condition. Separate Statement No. 30. Smith, the lessor, is to maintain the roof, foundation, exterior walls and common area. Lee Decl. ¶ 3, Ex. 4(c).

Plaintiff’s only dispute with these contentions is that defendants Lee and Kor were parties to the lease with Smith, not just Kor. Separate Statement No. 30. Otherwise, plaintiff offers no evidence that the lease provides control to defendants Kor and Lee or requires them to maintain it.

Plaintiff offers evidence and arguments focusing only on Defendant Smith’s liability. In fact, Plaintiff’s opposition states, “SMITH/GLAD admitted ownership of the CONDITION, along with the right to control it, and responsibility to maintain it. (SSF 17-2 1, 28) In fact, SMITH’s son/property manager/agent testified after this MSJ was filed that he and his mother were responsible for maintaining the condition during the year before the incident. (SSF 21, 28) SMITH/GLAD did not identify the City as a potential defendant in their initial discovery responses. (SSF 37) Also, SMITH/GLAD admitted their non- delegable duty of safety for the property. (SSF 25).” Opposition, 3:9-14.

Therefore, there is no triable issue of fact as to whether defendants Kor and Lee had a duty to plaintiff. Defendants Lee and Kor did not own or control the ramp pursuant to their lease agreement with Smith, therefore no duty was owed to plaintiff by defendants Kor and Lee.

Therefore, defendants’ motion for summary judgment is GRANTED.

Duty and breach of duty

Defendants argue that plaintiff cannot meet her burden because she cannot establish that defendants breached any duty of care relative to the operation of the premises. Defendants further contend that they were not made aware of any defects relating to the construction or the management of the raised concrete incline prior the incident. Defendants further contend that the concrete incline was and is open and obvious as a defense against premise liability.

However, because defendants had no duty to plaintiff as explained above, the court need not reach the merits on these issues.

The motion is therefore GRANTED and defendant is ordered to lodge a proposed judgment with the court.

Defendant is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 25, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court

MOVING PARTY: Defendants Barbara Smith, dba Glad Associates

RESPONDING PARTY: Plaintiff Stephanie Kagel

Motion for Summary Judgment

The court considered the moving, opposition, and reply papers.

BACKGROUND

On October 7, 2015, plaintiff Stephanie Kagel filed a complaint against defendants Barbara Smith dba Glass Associates, Kor Fitness Gym, and Kor’s sole shareholder Kenneth Chu for premises liability and negligence based on a trip and fall incident on November 20, 2013. Defendant Smith moves for summary judgement.

LEGAL STANDARD

DISCUSSION

Defendant Smith requests that the court enter summary judgment in her favor and against plaintiff pursuant to CCP § 437c on the ground that there is no triable issue of material fact and she is therefore entitled to judgment as a matter of law.

Defendant contends she did not owe plaintiff a duty because she has no ownership interest, possession, of or exercised any control of the curb and alley wherein plaintiff slipped and fell. Separate Statement, Nos. 6, 7, and 8. Defendant further contends she had never received any complaints regarding the subject curb and had no notice of any trip and falls on the subject curb. Separate Statement, Nos. 9 and 10.

Finally, defendant contends, “it was not reasonably foreseeable to Defendant Smith that Plaintiff would exit out the rear of the Premises (which she had approximately 100 times before) at approximately 11:30 a.m. in broad daylight, smell spray paint fumes, and because of her unknown sensitivity to said fumes, turn quickly to the left to get away from the fumes and trip over a curb that she knew was there. (UMF’s Nos. 12-16.) Plaintiffs panic over smelling fumes does not excuse her actions in this matter. The curb cannot be blamed for Plaintiffs overreaction to the alleged oncoming fumes.” MSJ, 13:22-28.

Evidentiary Objections

Here, the parties objected to various parts of defendant’s separate statement within the separate statement itself in violation of rule 3.1354, subdivision (b), therefore the court declines to rule on the objections.

Duty

Defendant contends she did not owe plaintiff a duty because she has no ownership interest, possession of, or exercised any control of the curb and alley wherein plaintiff slipped and fell. Separate Statement, Nos. 6, 7, and 8.

Here, defendant proffers the declaration of Gregory Amoroso (professional land surveyor) who surveyed the subject land and determined that the alley and concrete ramp is within the public right of way. Therefore, Mr. Amoroso determined that the premises owned by defendant does not extend to the curb and ramp. Amoroso Dec., ¶¶ 6-9. In opposition, plaintiff proffers defendant’s responses to discovery, wherein defendant admitted to having control over the ramp, as well as being responsible for maintaining the area. Separate Statement, Nos. 17-21. In reply, defendant contends the responses were superseded by amended discovery responses and that plaintiff simply manipulates facts in her opposition.

However, a party may amend an admission made in response to a request for admission only on leave of court granted after notice to all parties. CCP § 2033.300. The court may permit withdrawal or amendment of an admission only if it determines that the admission was the result of mistake, inadvertence, or excusable neglect, and that the party who obtained the admission will not be substantially prejudiced in maintaining that party’s action or defense on the merits. As a general rule, an admission is conclusive in the action as to the party making it, and, absent leave of court to amend or withdraw the admission, no contradictory evidence may be introduced. Murillo v. Superior Court (2006) 143 Cal.App.4th 730.

Here, defendant did not seek leave of court to amend her responses to plaintiff’s request for admissions, therefore, absent leave of court, defendant’s original admissions are conclusive.

Therefore, there is a triable issue of fact as to whether defendant owns or has control of the subject area. Accordingly, defendant’s motion for summary judgment is DENIED.

Breach

Defendant argues that plaintiff cannot meet her burden because she cannot establish that defendant had breached any duty of care relative to the operation of the premises. Defendant contends she had never received any complaints regarding the subject curb and had no notice of any trip and falls on the subject curb. Separate Statement, Nos. 9 and 10. Defendant further contends the curb was open and obvious to plaintiff.

In Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764, the Supreme Court summarized the so-called Rowland factors for determining whether a duty of care exists: “In the Rowland decision, this court identified several considerations that, when balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714: ‘the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.’” Id. at 771 (citing Rowland v. Christian (1968) 69 Cal. 2d 108). Accord, Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213. Although foreseeability and the extent of the burden to the defendant are ordinarily the crucial considerations, one or more of the Rowland factors may be determinative of the duty analysis in a given case. Castaneda, supra; Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224, 237, fn. 15. Legal duty in negligence causes of action is a question of law. Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.

“Because the owner is not the insurer of the visitor’s personal safety, the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability. Although the owner’s lack of knowledge is not a defense, [t]o impose liability for injuries suffered by an invitee due to [a] defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises” Ortega, supra, at 1206; accord, Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal. App. 4th 472, 476.

Here, defendant contends there was no knowledge or notice of any problems with the subject curb. MSJ, 12:27-28. In opposition, plaintiff contends that on at least one occasion it was relayed to defendant that the curb was a tripping hazard. Morrison Depo., 41:22- 42:7. Therefore, there exists a triable issue of fact as to whether defendant was on notice of the tripping hazard.

Finally, defendant contends the curb was open and obvious to plaintiff. In opposition, plaintiff proffers the declaration of Brad Avrit, an engineer, who opined, “in addition to the curb being directly below Ms. Kagel’s line of site, the shade and the fact that the curb did not have a handrail and was not painted bright red, increased the likelihood that Ms. Kagel would not appreciate the curb.” Avrit Dec. ¶12. Plaintiff contends that the curb was not open and obvious for the reasons set forth in Mr. Arvit’s declaration and because she experienced momentary forgetfulness when avoiding spray-painting fumes because of her sensitivity to toxins. Plaintiff contends that that these events caused a sudden emergency to which she immediately reacted to avoid the toxins of the spray paint.

In reply, defendant contends that plaintiff’s reaction was unforeseeable and the curb was open and obvious. Reply, 8:4-25. Further, defendant contends that plaintiff was simply inattentive and not faced with an emergency. Separate Statement, No. 75. Defendant’s separate statement in reply and reply papers are contradicting. Either defendant’s theory is that plaintiff and everyone else tripped on the curb because they were inattentive, or plaintiff’s reaction was unforeseeable. The former argument creates a triable issue of fact because as a requisite it was foreseeable that someone would trip on the curb while inattentive, because it has occurred multiple times prior. The latter argument also creates a triable issue of fact, because it does not negate plaintiff’s claim that she was faced with an emergency and momentarily forgot about the curb.

Therefore, there is a triable issue of fact as to whether the curb was open and obvious and whether it was foreseeable that plaintiff would trip and fall.

The motion is therefore DENIED.

Plaintiff is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED: June 25, 2018

_____________________________

Dennis J. Landin

Judge of the Superior Court

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STEPHANIE KAGEL VS GLAD ASSOCIATES

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