Case Number: BC648950 Hearing Date: February 05, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGEMENT; DENIED

I. INTRODUCTION

On February 2, 2017, Plaintiff Gladys Chicas (“Plaintiff”) filed a complaint against Defendants American Multi-Cinema, Inc.; AMC Entertainment Holdings, Inc.; and Does 1 to 30 for premises liability and general negligence relating to a trip and fall incident that occurred on March 14, 2015. Defendant American Multi-Cinema, Inc. (erroneously sued and served as American Multi-Cinema, Inc. and AMC Entertainment Holdings, Inc.) (“Defendant”) moves for summary judgment on grounds that no dangerous condition existed on the premises and Defendant had no actual or constructive notice of the alleged dangerous condition.

II. FACTUAL BACKGROUND

On March 14, 2015, Plaintiff was at an AMC theater located in West Hills, California with her son-in-law and granddaughter. (Undisputed Material Fact (“UMF”) Nos. 1, 2.) When they entered the theater, they could have either gone up to their right or down to their left to find seats. (UFM No. 4.) Plaintiff went to the left and started to walk down. (UMF Nos. 9, 10.) As Plaintiff was going down, she was looking for where to grab on, found nothing, and tumbled. (UMF No. 10.)

III. 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.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[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.” (Id.) 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.” (Id.) “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.)

V. DISCUSSION

Plaintiff alleges causes of action for premises liability and negligence against Defendant. The elements of premises liability and negligence are the same: duty, breach, causation and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

While an owner of premises is not an insurer of the safety of its patrons, the owner still owes them a duty to exercise reasonable care in keeping the premises reasonably safe. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) For example, a “store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.” (Ibid.) The exercise of ordinary care may require the owner to take greater precautions or to make more frequent inspections, but ultimately, the owner must use the care required of a reasonably prudent person acting under the same circumstances. (Ibid.)

Defendant moves for summary judgment on grounds that Plaintiff cannot show a dangerous condition existed or that Defendant had notice of a dangerous condition.

Existence of Dangerous Condition

“A condition is dangerous if it creates a substantial risk of injury when foreseeable users use the property with due care.” (Huffman v. City of Poway (2000) 84 Cal.App.4th 975, 991 [citing Government Code section 830(a)].) “A condition is not dangerous if the risk of injury created by the condition is so minor, trivial or insignificant that it arises only when foreseeable users do not use due care.” (Ibid. (citing Government Code section 830.2).) “Whether a given set of facts and circumstances creates a dangerous condition is usually a question of fact.” (Ibid.) “The issue of a dangerous condition becomes a question of law only where reasonable minds can come to only one conclusion.” (Ibid.) “Whether the condition of property posed a substantial risk of injury to foreseeable users exercising due care is an objective standard and is measured by the risk posed to an ordinary foreseeable user.” (Id. at p. 992.)

Here, the alleged dangerous condition is a stairwell lacking a proper railing and aisles that were not properly lit.[1] Defendant contends, at the time of the incident, a handrail ran down the left side of the staircase where Plaintiff fell, and there were overhead lights, wall lights on both walls, stair lights, and fluorescent white strips on each stair in the auditorium. (See Defendant’s Separate Statement, Nos. 15-16, 24-25; Barbosa Decl., ¶¶ 5-6; Lopez Decl., ¶¶ 9-10.) According to Ashley Lopez, a crew worker who was physically present and working at the theater on the date of the incident, the overhead lights, wall lights, and stair lights were all on in the area of the incident when she arrived at the auditorium. (See Defendant’s SS, Nos. 18-19, 27; Lopez Decl., ¶¶ 3-4, 27.) As a trailer was playing, the lights were dim but brighter than when the feature film would be playing.[2] (See Defendant’s SS, Nos. 21, 26; Lopez Decl., ¶¶ 6, 11.)

Mack A. Quan is Defendant’s retained expert witness. (See Defendant’s SS, No. 28; Quan Decl., ¶¶ 1-7.) Quan performed an inspection of the auditorium on March 12, 2018. (See Defendant’s SS, No.; 29; Quan Decl., ¶¶ 8-10.) Quan found the walkway was covered by carpet in good condition; each step along the walkway had code-compliant handrails mounted to the wall with extensions above and below the change in elevation; and each step was illuminated with strip lighting. (See Defendant’s SS, Nos. 30-33; Quan Decl., ¶ 10.) The illumination of the steps was measured at greater than 0.2 foot-candles with a movie playing on the screen, which he says complies with applicable building codes. (See Defendant’s SS, No. 34; Quan Decl., ¶ 10.) Quan opines that the walkway was safe and conformed with applicable building codes. (See Defendant’s SS, Nos. 35-36; Quan Decl., ¶ 11.)

Quan does not state that he made the measurements of the steps or the lighting. His declaration states in the passive voice, “Measurements of the steps was [sic] made . . .,” and “The illumination of the steps was measured . . . .” He also does not state he, or anyone else, measured the handrails or what the measurements were. He simply concludes without explanation that the railings were Code compliant. Plaintiff correctly objected that these conclusions lack foundation. Quan did not establish who took the measurements, what the measurements were, and how he arrived at his conclusion the railing was Code compliant. Therefore, Defendant did not establish the lighting and handrail were safe and in conformity with building codes.

Notice

To establish liability for negligence, “[t]here must be some evidence . . . to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.” (Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, 829.) Defendant argues that because the walkway was adequate and safe, Defendant had no notice of any defect. This argument is based on an assumption Defendant did not establish – that the walkway was adequate and safe – as discussed above.

Defendant also argues Plaintiff admitted she cannot prove Defendant had notice. “The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence.” (Ortega, supra, 26 Cal.4th at p. 1206.) Here, Defendant states the theater was remodeled in September 2013, so the conditions of the theater were in existence for about one and a half years before the accident. If the walkway was dangerous, Plaintiff may be able to establish constructive knowledge.

VI. CONCLUSION

Because Defendant did not establish with competent evidence that no triable issues of material fact exist, Defendant’s motion for summary judgment is DENIED.

Moving party to give notice.

[1] The issue of lighting was not specifically pled as a dangerous condition in Plaintiff’s Complaint. This would generally mean it is outside the scope of pleadings and Defendant would not be required to disprove Plaintiff’s dangerous condition for lack of lighting theory. (See 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.” (Ibid., emphasis in original).) However, as acknowledged by Defendant, Plaintiff’s discovery responses indicated that her claim is based on the lack of lighting in the aisles. (See Defendant’s Compendium of Evidence, Exs. E, F.) As Defendant had notice of and has proffered evidence on the basis of such a theory, the Court will consider Plaintiff’s dangerous condition based on lack of lighting theory.

[2] According to Jesse Barbosa, AMC’s general manager, the overhead lights, wall lights, and stair lights would be on. (See Defendant’s SS, No. 17; Barbosa Decl., ¶ 7.) Plaintiff objects that Barbosa has no knowledge about the conditions at the time of the incident because he did not start working at the theater until November 2016. This objection is well-taken.