Case Number: TC026920    Hearing Date: July 16, 2014    Dept: 91

Motion for Summary Judgment by Defendant, Alpine Village, Inc., filed on 9/26/13 is DENIED. Defendant has not met its burden of establishing it is entitled to judgment based on the material facts proffered, which remain in dispute. Cal Code Civ Procedure § 437c(p)(2).

Plaintiff’s evidentiary objections are SUSTAINED as the declaration of Defendant’s experts lacks foundation and knowledge. The expert’s conclusion that Defendant did not have notice of any dangerous condition did not consider Defendant’s response to Special Interrogatories, wherein Defendant admitted that there were at least two prior similar acts. Sullivan decl., Ex. D, ¶ 1.d – f. The court rejects the declaration.

“An expert’s opinion, even if uncontradicted, may be rejected if the reasons given for it are unsound. ( Kastner v. Los Angeles Metropolitan Transit Authority (1965) 63 Cal. 2d 52, [524] 58 [45 Cal. Rptr. 129, 403 P.2d 385]; Griffith v. County of Los Angeles (1968) 267 Cal. App. 2d 837, 847 [73 Cal. Rptr. 773] [expert opinions, though uncontradicted, are worth no more than the reasons and factual data upon which they are based];” Kelley v. Trunk, 66 Cal. App. 4th 519, 523-524 (Cal. App. 2d Dist. 1998).

The court rejects the new arguments raised in Defendant’s reply relevant to lack of causation and the defense under the Dram Shop Law Civ Code § 1714(b). The only bases for the motion of which Plaintiff had notice are the elements of duty and lack of a breach of duty given the alleged lack of foreseeability of the attack and lack of prior notice. The separate statement seeks to adjudicate two elements only – no breach and no duty.

Defendant owes a duty given the special relationship between a restaurant and patron. As a general rule, there is no duty to act to protect persons from the conduct of third parties unless a special relationship exist. Delgado v. Trax Bar & Grill, 36 Cal. 4th 224, 235 (Cal. 2005).

Defendant owes a duty to its patrons to take reasonable steps to secure common areas against foreseeable criminal acts of third parties. Id. There is a triable issue of fact as to whether the assault involving a beer stein that occurred on 10/16/10 was foreseeable given that prior similar incidents occurred.

Defendant contends it did not have notice until after the attack at issue began. The parties do not dispute that the incident occurred on 10/16/10. UF 1.

However, Plaintiff cites Defendant’s response to Interrogatories admitting that “Responding party is aware that on September 10, 2010, there was an assault with a glass stein. There was also an incident in which a patron used a glass stein to attack a North American security guard who suffered a laceration on his cheek but Responding Party does not recall the date.” Plaintiff’s Ex. 22, Response to Interrogatory #8. Fact 8 is DISPUTED.

Fact 9 also asserts there were no prior attacks that involved a drinking vessel to hit someone in the face. This is based on Defendant’s expert declaration, who admittedly did not review Defendant’s responses to Special Interrogatories. The expert reviewed only Defendant’s responses to Form Interrogatories, Request for Production of Documents and Request for Admissions. Sullivan decl ¶1d-f. Fact 9 is DISPUTED.

Fact 10, 11 and 13 all remain in dispute. Defendant relies on its expert’s declaration which the court rejects as explained above. Defendant asserts the same facts to support Issue 2 (Lack of Duty). Fact 9 remains in dispute.

Defendant has not established it is entitled to judgment on the premises liability claim. Liability is imposed where the owner/occupier has “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. . . .’ ” (Ibid., quoting Hatfield, supra, 18 Cal. 2d at p. 806.)” Ortega v. Kmart Corp., 26 Cal. 4th 1200, 1206 (Cal. 2001).

Defendant relies on the same material facts which remain in dispute as previously discussed .