Case Number: BC662517 Hearing Date: May 15, 2019 Dept: 4A

Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On May 23, 2017, Plaintiff James Watkins (“Plaintiff”) filed a complaint against Defendant Sharzad Petroleum Enterprises Corporation dba ARCO (“Defendant”) alleging negligence (arising from a slip-and-fall) and premises liability (arising from contact made with a third-party.) Both incidents occurred on June 6, 2015.

On January 8, 2019, Defendant filed a motion for summary judgement, or in the alternative, a motion for summary adjudication on the basis that Defendant did not breach a duty that would support Plaintiff’s negligence claim. Defendant also argues in this motion that Defendant did not owe a duty, breach a duty, or cause harm from a breach of any duty to Plaintiff with respect to Plaintiff’s premises liability claim.

On March 25, 2019, the Court continued the hearing on Defendant’s motion for summary judgment to May 9, 2019 to allow Plaintiff to obtain evidence of a history of similar crimes and acts that have occurred at Defendant’s premises.

On April 11, 2019, the Court continued the hearing on Defendant’s motion for summary judgment to May 15, 2019 due to Department 4A being closed on May 9, 2019.

A trial setting conference is also set for May 15, 2019.

PARTIES’ REQUESTS

Defendant requests this Court for an order granting summary judgment in its favor because there is no triable issue of material fact regarding duty, breach, and causation and Defendant is entitled to judgment as a matter of law.

In the alternative, Defendant requests this court for an order granting summary adjudication in its favor because: (1) there is no triable issue of material fact regarding a breach of a duty as to Plaintiff’s negligence cause of action and (2) there is no triable issue of material fact regarding duty, breach, and causation as to Plaintiff’s premises liability cause of action.

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. Atl. 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 facie 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 “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.” (Code Civ. Proc., § 437c, subd. (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.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (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, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc. § 437c, subd. (c).)

JUDICIAL NOTICE

Plaintiff requests the Court to take judicial notice of the City of Los Angeles Municipal Code Ordinance section 41.27, offered as Exhibit 9, and the California Attorney General’s Summary Sheet on the California Public Records Act of 2004, offered as Exhibit 10. The Court takes judicial notice of these documents as they fall within the confines of California Evidence Code section 452, subdivisions (c) and (h).

OBJECTIONS

Defendant objects to Plaintiff’s separate statement on the grounds that it does not comport with California Rules of Court, rule 3.1350, subdivisions (f) and (h). Although there may be sufficient grounds to sustain these objections, the Court declines to do so because the deficiencies are minor and of no substantive consequence. Accordingly, the Court OVERRULES the objection.

Defendant objects to Exhibit 1 of Evan Blair’s declaration on the grounds that Defendant was not given notice of the deposition subpoena in violation of California Code of Civil Procedure section 2025.220, subdivision (b). The proof of service attached to this deposition subpoena to the LAPD does not include Defendant as required by California Code of Civil Procedure section 2025.220, subdivision (b). Defendant does not present any authority for the argument that the subpoena is inadmissible because of the deficient service, nor any basis for a finding that Defendant has been prejudiced in any way. The Court OVERRULES this objection.

Defendant also objects to Exhibit 1 of Evan Blair’s declaration on the grounds that Plaintiff’s counsel improperly acted as a deposition officer in violation of California Code of Civil Procedure section 2020.420. While Plaintiff appears to have checked the wrong box on the form subpoena, a party may dispense with a deposition officer where it requests that the original documents be made available to the party’s attorney for inspection and copying. (Code of Civil Procedure section 2020.430(e). Although the LAPD simply mailed copies, rather than producing the originals for copying, Defendant has not explained why this departure from statutory procedures should render the documents inadmissible. Plaintiff has provided the required declaration from the LAPD’s custodian of records and a sworn statement from Plaintiff’s counsel that all produced documents have been filed with the Court and served on Defendant, as is required under the applicable statutes. (Evidence Code section 1561). Accordingly, the Court OVERRULES this objection.

Defendant objects to Exhibits 2 and 3 of Evan Blair’s declaration on the grounds that they were produced through an improperly served deposition subpoena listed as Exhibit 1 and that Plaintiff’s counsel improperly acted as a deposition officer in obtaining these documents. The Court OVERRULES this objection because it has overruled the underlying objections on which it is based.

Defendant objects to Exhibit 3 on relevancy grounds. The Court OVERRULES this objection. Exhibit 3 is relevant in establishing a foundation for documents produced in response to the February 8, 2019 subpoena issued to the LAPD. (See Evidence Code section 1561).

Defendant’s objection to page 2, lines 23-24 of Evan Blair’s declaration on the grounds of lack of personal knowledge is OVERRULED.

Defendant’s objection to page 4, lines 1-4 of Evan Blair’s declaration on the grounds that the documents speak for themselves is an improper objection, and is thus OVERRULED.

Defendant’s objections to Exhibits 9 and 10 of Evan Blair’s declaration on the grounds of hearsay are OVERRULED. Both of these documents are official records within the official records exception of Evidence Code section 1280.

Defendant’s objections to Exhibits 9 and 10 of Evan Blair’s declaration on the grounds of relevancy are SUSTAINED. These official records have no tendency to prove a fact relevant to the pending motion.

ANALYSIS

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.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) The existence and scope of duty are legal questions for the court. (Id. at p. 36.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for their use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.)

“Liability for nonfeasance is limited to situations in which there is a special relationship that creates a duty to act.” (Seo v. All-Makes Overhead Doors (2002) 97 Cal.App.4th 1193, 1202 (citations omitted).) A defendant may have a duty to hire security guards based on a history of prior similar incidents that provide “indications of a reasonably foreseeable risk of violent criminal assaults.” (Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1222 (citation and quotation omitted).)

Defendant’s undisputed material facts demonstrate the following. No water, fluid, or slippery substance on the floor caused Plaintiff to fall. (UMF No. 4, p. 3:8-3:13.) No lighting condition caused Plaintiff to fall. (UMF No. 5, p. 3:14-3:19.) The third-party pushing Plaintiff is what Plaintiff believes caused Plaintiff’s injury. (UMF No. 11, p. 5:15-5:22.)

The Court finds Defendant has met its burden. Defendant has presented evidence demonstrating that it did not breach a duty regarding Plaintiff’s negligence cause of action because Plaintiff testified that there was no slippery substance on the floor, which caused Plaintiff to fall. Defendant has similarly presented evidence that Plaintiff did not fall due to improper lighting, but rather the fall resulted from a third party pushing Plaintiff.

Plaintiff has submitted no evidence of any slippery substance that existed on the floor at the time of Plaintiff’s fall. Rather, Plaintiff concedes that there was no water, fluid, or slippery substance on the floor that caused Plaintiff to fall, and proceeds only with Plaintiff’s second cause of action for Defendant’s failure to provide adequate security. (See UMF No. 4, p. 4:10-4:14.)

Plaintiff has submitted evidence of 407 calls to police during a five-year period prior to the incident reflecting approximately 300 violence-related disturbances and the remaining being violent felonious incidents, all relating to Defendant’s premises. (Plaintiff’s Additional UMF (“PAUMF”) Nos. 60, 61, pp. 24:11-27:19.) This evidence, coined the “Goldmine,” was declared by Sam Lapides to be true and correct, the custodian of records of the LAPD. (Blair Decl., ¶ 6, Exh. 2-3.) The evidence listed in support Plaintiff’s additional undisputed material fact numbered 39, 44, and 45 establish that Defendant has no guards or other security arrangements other than video cameras. Plaintiff’s evidence supporting his additional undisputed material fact numbered 19, 20, and 21 establish that a third party, who was drinking beer and asking patrons for money, pushed Plaintiff.

The Court finds that Plaintiff has submitted evidence presenting a triable issue of material fact regarding whether Defendant had notice of a history of violent acts that took place at its premises, giving rise to a duty to provide adequate security on the premises. Plaintiff testified that his harm was caused by the third party pushing him. Based on the evidence in the record, it can be reasonably inferred that the presence of adequate security would have prevented this attack. It is a reasonable inference from the evidence that a security guard would have discovered and protected Plaintiff from the third-party woman who was drinking beer and asking patrons for money. It can also be reasonably inferred that such a security guard would have ushered the third party off Defendant’s premises prior to the third-party attack on Plaintiff.

The motion for summary judgment is DENIED.

The motion for summary adjudication is GRANTED IN PART, only as to Plaintiff’s First Cause of Action for negligence and DENIED IN PART as to his Second Cause of Action for premises liability arising from a failure to provide adequate security.

Defendant is ordered to give notice of this ruling.