Case Number: BC712009 Hearing Date: September 19, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Defendant Long Point Development, LLC (erroneously sued as “Lowe Enterprises Real Estate Group dba Terranea Resort”) (“Defendant”) moves for summary judgment on plaintiff Akiko Matsuzawa’s (“Plaintiff”) two causes of action for negligence and premises liability arising from a squirrel attack while Plaintiff was at a luxury resort owned by Defendant.

Defendant contends it is entitled to summary judgment on Plaintiff’s negligence and premises liability claims because: (1) Defendant did not owe Plaintiff a duty to warn her or prevent the squirrel attack; and (2) Defendant’s failure to warn Plaintiff of the potential for squirrel attacks did not cause Plaintiff’s injuries as a matter of law.

II. FACTUAL BACKGROUND

Defendant owns Terranea Resort (“Terranea”), a hotel resort of 102 acres on the Rancho Palos Verdes peninsula. (Defendant’s Undisputed Material Fact (“UMF”) Nos. 1-2.) Since Terranea has been open to the public in 2008, thousands of guests and visitors have walked throughout the vast property and have commingled with natural wildlife, including native squirrels. (UMF No. 3.)

On October 13, 2016, a squirrel ran between the legs of a woman who was standing at the valet area of the property, resulting in scratches on the woman’s leg. (UMF No. 18.) This was the first reported instance of an injury to a guest or employee caused by any animal, including a squirrel, since Terranea opened in 2008. (UMF No. 20.) On December 7, 2017, Plaintiff was attacked by a squirrel while visiting Terranea for a friend’s birthday party. (UMF Nos. 21, 24.) Plaintiff parked in the parking lot about 100 meters from the front entrance. (UMF No. 25.) The squirrel jumped onto Plaintiff from behind and bit her right arm while she was holding her baby and walking towards the front entrance of the hotel. (UMF No. 27-29.)

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.” (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, 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.” (Ibid.) “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.)

IV. EVIDENTIARY OBJECTIONS

Defendant’s Objections Nos. 3, 7, 8, 10, 11, 12, 13, 14, 18, 19, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 42, 49, 50, 51, 52, 53, 54, 56 are SUSTAINED

Defendant’s Objection Nos. 1, 2, 4, 5, 6, 9, 15, 16, 17, 20, 24, 13, 38, 39, 40, 41, 43, 44, 45, 46, 47, 48, 55, 57, 58, 59 are OVERRULED

V. DISCUSSION

The elements of a premises liability and negligence cause of action 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.) The “existence and scope of a duty are questions of law.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) To assess the scope of a duty, a court must “identify the specific action or actions the plaintiff claims the defendant had a duty to undertake” and then balance the risk and burdens present to determine whether specific obligations should be imposed. (Staats v. Vintner’s Golf Club, LLC (2018) 25 Cal.App.5th 826, 833-34.)

As framed by the pleadings, Plaintiff alleges Defendant allowed squirrels to remain on the premises unchecked when it knew, or should have known, that the squirrels created an unreasonable risk of harm to customers. (Complaint, ¶ 12.) Plaintiff also alleges Defendant failed to remove the squirrels from the premises and failed to warn Plaintiff of the danger presented by the squirrels. (Id.)

Duty to Remove or Warn

Defendant argues it did not have a duty to remove squirrels from the resort or warn about squirrels on the premises.

Under the factors set forth by Rowland v. Christian (1968) 69 Cal.2d 108, 112, to determine whether a duty exists, the Court must assess “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.”

“[T]he analysis of foreseeability for purposes of assessing the existence or scope of a duty is different, and more general, than it is for assessing whether any such duty was breached or whether a breach caused a plaintiff’s injuries.” (Staats, supra, 25 Cal.App.5th at p. 837.) “‘[I]n analyzing duty, the court’s task is not to decide whether a particular plaintiff’s injury was reasonably foreseeable in light of a particular defendant’s conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.’ [Citation.]” (Ibid., quotations omitted.)

In Staats, the issue was whether the defendant landowner was required to take steps to keep the premises free of yellow jacket nests. (Staats, supra, 25 Cal.App.5th at p. 834.) The court stated the proper “focus is on the more general question of whether it is foreseeable that a yellow jacket nest on the grounds might pose a danger to patrons,” not on whether the landowner knew or should have known about the particular yellow jacket nest at issue. (Id. at pp. 837-838.) The court noted that in determining whether a particular category of harm is reasonably foreseeable, the measure “‘includes whatever is likely enough in the setting of modern life that a reasonbly thoughtful [person] would take account of it in guiding practical conduct.’ [Citation.]” (Id. at p. 838.) The court concluded that “it was reasonably foreseeable that yellow jackets in an underground nest on the premises would form a swarm and attack a nearby golfer” based on evidence that yellow jackets were prevalent in the area, they become aggressive if threatened, the premises’ employees had seen yellow jackets on the premises, and it is common knowledge that yellow jackets are dangerous in large numbers. (Id. at p. 839.)

Here, the analogous question is whether it is foreseeable that squirrels on the resort grounds might pose a danger to patrons. Defendant provides the testimony of Todd Courtney, the head of Defendant’s Engineering Department that he was unaware of incidents involving squirrels injurying guests before Plaintiff’s incident. He has seen squirrels on the property “very infrequently” and is not aware of guests interacting with squirrels. (UMF Nos. 10-12.) Bruce Campbell, the director of Loss Prevention, testified that he has never seen signs of squirrels on the property such as teeth bite marks, damage to electrical wires, nests, wood chips attirbutable to squirrels, damaged air vents, or dead squirrels. (UMF No. 15.)

Defendant also argues public policy cuts against the imposition of a duty to remove the squirrels from its property or warn about squirrels. Defendant contends there is no moral blame associated with its actions; squirrel attacks are rare and landowners should not be held liable for injuries caused by them; and imposing a duty to remove squirrels would negatively impact the environment and expose landowners to fines, citations, and litigation by governmental agencies and/or animal rights’ advocates. Defendant has met its initial burden to show that it did not owe a duty to Plaintiff to remove or warn about squirrels.

Plaintiff argues that her injury was foreseeable due to the October 2016 incident. She posits that because a squirrel had attacked a hotel visitor a year before, Defendant had a duty to exercise reasonable care with respect to the squrirels on the property. She also argues her attack was foreseeable because Defendant was aware that guests were feeding squirrels and interacting with them, and there were two squirrels near the valet and front lobby area that were growing “too comfortable” around humans and responsible for the attack. (Plaintiff’s Additional Material Facts (“AMF”) Nos. 1-4.

As an initial matter, Plaintiff makes the mistake of focusing on whether Defendant knew or should have known of the particular allegedly dangerous squirrel due to the prior incident of a squirrel running through and scratching the legs of a guest, instead of considering “the more general question of whether it is foreseeable that [squirrels] on the grounds might pose a danger to patrons.” (Staats, supra, 25 Cal.App.5th at pp. 837-838.) And even if that particular focus was proper, the previous isolated incident did not make it reasonably foreseeable that a squirrel would run up a person’s arm and bite that person.

Further, Plaintiff’s arguments are not supported by admissible evidence. Plaintiff relies on Campbell’s testimony for Plaintiff’s Additional Facts that Defendant “was aware that guests were feeding squirrels/rodents” and “the squirrels/rodents near the valet and front lobby area were growing ‘too comfortable’ around humans. (Plaintiff failed to number her Additional Facts.) But the cited Campbell testimony (page 65:6-20) does not say that. Rather on page 65 of his deposition, he said “[t]he squirrel got too comfortable,” he did not know why, and the availability of food could be a factor. He did not say guests were feeding squirrels or discuss the squirrels being near the valet and front lobby.

In addition, Plaintiff introduces the Declaration of Allan D. Snyder to opine on “a hotels [sic] standard of care with respect to keeping guests safe from squirrel attacks.” As an initial matter, Mr. Snyder is not qualified to testify as an expert on dangerous squirrels. Nothing in Snyder’s declaration or CV indicates that he has “special knowledge, skill, experience, training, and education” related to squirrels and squirrel attacks. His certifications pertain to “household pests” that invade households and other structures. His CV attests to his experience treating bugs, cockroaches, mice, rats, ants and bees, but contains no mention of squirrels or other wild animals that do not tend to live inside houses and buildings.

Moreover, “a party cannot rely on an expert’s opinion to establish duty, which is a question of law for the court.” Thompson v Sacramento City Unified Sch. Dist. (2003) 107 Cal.4th 1352, 1373. In Thompson, the court affirmed summary judgment for the defendant and deemed proper the trial court’s exclusion of the plaintiff’s expert testimony. The Court held that an expert’s “speculative and conjectural conclusion that different measures might have prevented an injury cannot be relied upon to establish causation.” Thompson, 107 Cal.4th at 1373. Snyder’s testimony offers similar conjecture. (Snyder Decl., ¶ 9 (“Terranea could have instituted an Integrated Pest Management program to alter the habitat, such as cutting the tree branches where the squirrel/rodents resided near the front lobby.”).)

In sum, it is not reasonably foreseeable that a squirrel would attack and bite a guest at the resort. Unlike yellow jackets, it is not common knowledge that squirrels are dangerous and squirrels are not usually aggressive. As for the other Rowland factors, it is undisputed Plaintiff suffered a bite. The closeness of the connection between Defendant’s conduct and the injury suffered is questionable. Plaintiff did not show that Defendant was acting in any way to encourage squirrels to interact with guests. Defendant’s conduct does not carry moral blame – there is no evidence squirrels are inherently dangerous and need to be kept away from people. Given the lack of evidence that squirrels routinely attack people or that people are scared of squirrels, a policy of removing squirrels from the resort grounds is unlikely to prevent future harm and would be an undue burden on Defendant. These factors weigh against finding Defendant has a duty to remove squirrels from the resort or warn about squirrels. Accordingly, the Court concludes Defendant did not have such a duty.

Causation

Defendant argues it was not under a duty to warn Plaintiff of the possibility of a squirrel attack and even if it were, its failure to warn did not cause Plaintiff’s injuries. In support, Defendant cites to Plaintiff’s testimony that if she saw a warning sign on Defendant’s property, she would have looked ahead and to her side for squirrels while walking towards the entrance. (Def.’s Ex. G at 73:17 – 75:14.) Plaintiff submits no evidence to dispute this. Thus, even if there had been squirrel warning signs posted at the resort and even if Plaintiff had been looking around for squirrels, the squirrel could still have done what it did – run up from behind Plaintiff and bite her.

VI. CONCLUSION

In conclusion, Defendant’s Motion for summary judgment is GRANTED.

Moving party to give notice.