Case Number: BC650560 Hearing Date: October 30, 2018 Dept: 5

Motion for Summary Judgment by Defendant BOsley, LLC:

Plaintiffs Gahda Zoueihid, Anwar Zoueihid, Marwan Zoueihid, and Marisol Zoueihid (“Plaintiff”) filed this action for the wrongful death of Hani Zoueihid (“Decedent”) due to injuries sustained on April 1, 2016. Decedent was on the property of defendants Lilly Enterprises, Inc., Coastline Real Estate Advisors, Inc.,[1] and Bosely, LLC when Decedent fell from a third story balcony, causing him severe injuries from which he later died. Specifically, Plaintiffs contend that the balcony was in an unsafe condition in that the railing of the balcony was so low that it allowed Decedent to fall.

Defendant Bosley, LLC (“Bosley”) filed the instant motion for summary judgment on August 16, 2018. Plaintiffs oppose the motion, and Defendant has replied.

The Court issues no dispositive tentative order at this time. Defendant Bosley argues in objections 4, 6, 7, 12, 13, 17, 19, 21, 22, and 23 to the Declaration of Robert B. Reagan that each deposition offered by Plaintiffs is inadmissible because the depositions are not properly authenticated. Defendant contends that Plaintiffs failed to include the court reporter’s signed certification pages, and Reagan, the attorney who signed the declaration authenticating the evidence presented was not one of the attorneys who took the various depositions.

Rather than excluding each of the depositions as Defendant Bosley proposes, the Court would be inclined to continue the motion hearing to allow Plaintiffs an opportunity to submit the court reporter’s signed certification page and/or a declaration from an attorney who took the deposition as to each affected deposition.

Defendant Bosley should appear at the October 30, 2018 hearing. If Bosley indicates that it wishes to move forward with the above discussed objections, then the Court will continue the hearing on Bosley’s motion to the first available date for summary judgment. Alternatively, if Defendant Bosley indicates that it opts instead to withdraw these objections at the October 30, 2018 hearing, the Court will proceed to address Bosley’s motion on the merits.

[1] On October 23, 2018, Plaintiffs filed a notice of dismissal dismissing the complaint as to defendant Coastline with prejudice.
_________________________________________________________________________________________

Superior Court of California
County of Los Angeles
Department 5

Gahda ZOUEIHID, et al.,

Plaintiffs,

v.

Lilly Enterprises, Inc., et al.,

Defendants.

Case No.: BC650560

Hearing Date: October 30, 2018

[TENTATIVE] order RE:

Motion for Summary Judgment by Defendant Lilly Enterprises, Inc.

BACKGROUND

Plaintiffs Gahda Zoueihid, Anwar Zoueihid, Marwan Zoueihid, and Marisol Zoueihid (“Plaintiff”) filed this action for the wrongful death of Hani Zoueihid (“Decedent”) due to injuries sustained on April 1, 2016. Decedent was on the property of defendants Lilly Enterprises, Inc., Coastline Real Estate Advisors, Inc., and Bosley, LLC when Decedent fell from a third story balcony, causing him severe injuries from which he later died. Specifically, Plaintiffs contend that the balcony was in an unsafe condition in that the railing of the balcony was so low that it allowed Decedent to fall. Defendants Lilly Enterprises, Inc. (“Defendant” or “Lilly”) and Coastline Real Estate Advisors, Inc. (“Coastline”) filed the instant motion for summary judgment on August 8, 2018. This motion was first set to be heard on October 23, 2018. However, the Court, on its own motion, continued this motion to the instant date to be heard with the motion for summary judgment brought by Bosley, LLC.

On October 23, 2018, Plaintiffs filed a notice of dismissal dismissing the complaint as to Defendant Coastline with prejudice. As such, the motion for summary judgment as to Coastline is moot. Therefore, the only remaining moving party as to this motion is Defendant Lilly (“Defendant”). Plaintiffs oppose the motion, and Defendant has replied.

Evidentiary Objections

Plaintiffs’ Objections to Defendant Lilly’s Evidence

· Objections 1 and 2: Overruled. A decedent’s statements are admissible in a wrongful death action when offered against the plaintiff. (Evidence Code § 1227.)

· Objection 3: Overruled.

· Objection 4: Overruled. A decedent’s statements are admissible in a wrongful death action when offered against the plaintiff. (Evidence Code § 1227.)

· Objections 5 though 15: Sustained on grounds of hearsay within hearsay. When a statement contains multiple layers of hearsay, the offered statements are only admissible if there is an exception for each level of hearsay. (Evidence Code § 1201.) The testimony objected to contains multiple levels of hearsay without an applicable exception as to each level.

Defendant Lilly’s Objections to Plaintiffs’ Evidence

· Objection 1: Overruled.

· Objection 2: Sustained on grounds of hearsay as to lines 17 through 21. Overruled as to the balance of the quoted testimony.

· Objection 3: Sustained on grounds of hearsay.

· Objection 4: Sustained.

· Objection 5: Sustained.

· Objections 6 and 7: Overruled. The statements of Mr. Campos to Officer Orate immediately after the incident are being offered for the purposes of impeachment as a prior inconsistent statement. (Evidence Code § 1235.)

· Objection 8: Overruled. The statements of Mr. Molina to Officer Orate are statements by a party opponent as Mr. Molina was acting within the scope of his employment when he was reporting to the police officer what Mr. Molina had witnessed while working.

· Objection 9: Overruled. The statements of Mr. Molina to Ms. Green are statements by a party opponent as Mr. Molina was acting within the scope of his employment when he was reporting to Ms. Green what Mr. Molina had witnessed while working.

· Objection 10: Sustained. No pages from the deposition have been provided authenticating the photographs. As such, there is no foundation to authenticate the photographs in the records before the Court.

· Objection 11: Sustained. Denials of requests for admissions are not admissible as evidence. An Admission may be offered as a conclusively established fact. (CCP § 2033.210, subd. (a).) However, a denial is not usable as evidence at trial as it represents a legal position rather than a fact. (Victaulic Co. v. Am. Home Assurance Co. (2018) 20 Cal.App.5th 948, 973.)

· Objections 12 and 13: Overruled.

· Objection 14: Sustained. There is no foundation to show that Mr. Avrit is familiar with Decedent’s physical condition at the time of the incident.

· Objection 15: Sustained only as to the language “The defendants knew, or should have known of the subject dangerous condition, as the defendants managed and controlled the area where the incident occurred.” Overruled as to the balance of the quoted language.

· Objection 16: Overruled. The opinion is based on Anwar’s rationally based perception.

· Objections 17 through 19: Sustained on grounds of hearsay.

· Objection 20 through 22: Sustained. Plaintiffs’ counsel does not have personal knowledge to authenticate these exhibits.

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 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.)

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.)

DISCUSSION

The elements of a premises liability claim and negligence claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) Where the undisputed evidence shows that no dangerous condition of property existed at the time of the injury to the plaintiff, then summary judgment is appropriate. (Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, 732-35.)

Defendant Lilly moves for summary judgment on the basis that Plaintiffs cannot show that there was a dangerous condition at the time of Decedent’s injury and that the actions of Lilly were not a substantial factor in Decedent’s death. Lilly also argues that Plaintiffs cannot support their claim due to deficient discovery responses

Plaintiffs’ Insufficient Discovery Responses

Defendant Lilly argues that Plaintiffs’ responses to the request for admission show that Plaintiffs cannot support their burden of proof at trial. Defendant points to the responses provided to Request for Admission No. 9 and argues that this response does not contain facts sufficient to support Plaintiffs’ denial of the request.

The Court is not persuaded by Defendant’s argument. First, the Court first notes that Plaintiffs’ response does appear to contain facts that support its claims. Plaintiffs state in relevant part: “Defendants knew that the height of the balcony railing in the area where the incident occurred was defective and in violation of California Building Code section 1013.3.” Such a contention would show liability under a theory of negligence per se on part of Defendant Lilly as the owner of the property. As such, the Court does not find Plaintiffs’ response to show that Plaintiffs cannot prove their claim.

Second, even if this response is sufficient to show that Plaintiffs do not have sufficient evidence, Defendant has failed to show that Plaintiffs cannot reasonably obtain supporting evidence. A defendant moving for summary judgment must show either that one or more elements of the cause of action cannot be established, or that there is a complete defense to that cause of action. (CCP § 437c, subd. (p)(2).) This means that if the plaintiff bears the burden of preponderance of the evidence at trial, then the defendant in a summary judgment motion “must present evidence that would require a reasonable trier of fact not to find any underlying material fact more likely than not—otherwise, [the defendant] would not be entitled to judgment as a matter of law, but would have to present his evidence to a trier of fact.” (Aguilar, 25 Cal.4th at 851, emphasis original.) To meet this burden, 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, 25 Cal.4th at 854, emphasis original.) 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, 25 Cal.4th at 855.)

Here, Defendant merely points to the lack of evidence produced by Plaintiffs without providing any evidence that Plaintiffs cannot reasonably obtain evidence to support their claims. As such, Defendant has failed to meet its burden as to this argument, and the burden does not shift to Plaintiffs.

Defendant Lilly’s Affirmative Evidence

To support its arguments that there was no dangerous condition and that Lilly’s actions were not a substantial factor in Decedent’s death, Defendant offers the testimony of Jorge Alberto Campos (“Campos”). Campos resides across the street from the subject property. (Def. Exh. E, Campos Depo., p. 10:19-11:24.) On April 1, 2016, Campos was taking care of a kitten for his brother and was trying to find the kitten, so he peered out of the small cat door. (Id. p. 13:7-12.) While looking through the cat door, Campos saw Decedent “walking on the edge of the second-floor balcony.” (Id. p. 15:12-14.) Campos saw Decedent walk on the edge of the balcony toward a tree at the edge of the balcony. (Id. p. 15:15-18.) It took Decedent approximately 5 minutes to move across the balcony edge. (Id. p. 19:8-12.) When Decedent reached the edge of the balcony, he reached out towards the tree and stayed in that position for about a minute. (Id. p. 19:15-23.) Then, Decedent fell off the balcony edge to the ground. (Id. p. 20:2-4.)

Defendant also offers the testimony of the property manager Xao Green (“Green”). Green spoke to Decedent’s wife, Gahda, after the incident. Green asked Gahda how this incident occurred. (Def. Exh. A, Green Depo., p. 49:13-25.) Gahda stated that Decedent had told her at the hospital that he had locked himself out of the balcony and wanted to climb down the tree then come back into the building. (Ibid.)

Based on this testimony, Defendant argues that Decedent’s injuries were caused by Decedent’s actions in walking on the edge of the balcony and attempting to climb down the tree at the edge of the balcony. Based on Defendant Lilly’s evidence, the Court finds that Defendant has met its burden to show that there was no dangerous condition and that there was no condition of property or action by Defendant Lilly that was a substantial factor in causing Decedent’s harm. As such, the burden shifts to Plaintiffs to establish a triable issue of material fact.

In opposition, Plaintiffs argue that Defendant Lilly’s presentation of the facts could not have occurred. First, Plaintiffs present evidence that Decedent was 82 at the time of the incident and that he was physically frail. (A. Zoueihid Decl., ¶ 2.) Decedent required assistance with many of his daily activities and walked only with the assistance of a cane. (Ibid.) Further, Decedent had severe vision loss to the point where he was precluded from driving a car. (Ibid.) Second, Plaintiffs offer evidence that challenges Campos’s credibility and perception of the events. Officer Jeremy Orate arrived on the scene shortly after the incident after receiving the 911 call. Officer Orate spoke to Campos after arriving on the scene. ((Pl. Exh. D., Orate Depo., p. 25:14-17.) Campos told Officer Orate that Campos saw Decedent trimming some branches or bushes on his patio, and then Decedent fell to the ground. (Ibid.) Officer Orate testified that Campos made no statement about Decedent climbing on the edge or moving to the edge of the patio railing. (Id. p. 46:2-8.)

Plaintiff also presents evidence to show that a dangerous condition existed on the property through the testimony of Brad Avrit, an expert in civil and safety engineering and safety investigations. Avrit conducted an investigation of the subject premises. (Avrit Decl., ¶ 5.) Avrit measured the height of the balcony where Decedent fell and found that it was approximately 36.8 inches in height. (id. ¶ 7.) Avrit opines that this height is a violation of California Building Code § 1013.3. (Ibid.) California Building Code § 1013.3 requires that such guards should not be less than 42 inches in height. Avrit states that “had the balcony railing been of a sufficient height, Mr. Zoueihid’s center of gravity would never have been able to go over the balcony railing, he would have never fallen over, and he would be alive today.” (Ibid.)

The Court finds that Plaintiffs’ evidence is sufficient to create a triable issue of material fact. A reasonable juror could conclude that Decedent was physically unable to perform the actions of climbing onto the balcony and attempting to scale a tree. Further, the inconsistency in Campos’s statements, as well as the expert opinion of Avrit, could lead a reasonable juror to conclude that Decedent fell due to the insufficient railing height, rather than an attempt on his part to scale a tree. Accordingly, the Court finds that Plaintiffs have met their burden of proof to show a triable issue of material fact.

Based on the foregoing, Defendant Lilly’s motion for summary judgment is denied.

CONCLUSION AND ORDER

Defendant Lilly’s motion for summary judgment is denied.

Defendant Lilly is ordered give notice of this order and file proof of service of such.

DATED: October 30, 2018 ___________________________

Elaine Lu

Judge of the Superior Court