Case Number: BC683639 Hearing Date: June 04, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Spring Street Courthouse, Department 5

david fabrizio,

Plaintiff,

v.

robert patrick, et al.,

Defendants.

Case No.: BC683639

Hearing Date: June 4, 2019

[TENTATIVE] order RE:

MOTION FOR SUMMARY judgment

Background

Plaintiff David Fabrizio (“Plaintiff”), an actor on a television series, filed a complaint alleging that he was injured during filming. Defendant asserted a cause of action for negligence against NRG Energy, Inc. (“Defendant”) and alleged that it owned the property where the filming occurred. Defendant now moves for summary judgment, arguing that it does not, in fact, own the property. Plaintiff does not oppose the motion, which is granted.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law . . . . There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) In ruling on the motion, “the court may not weigh the plaintiff’s evidence or inferences against the defendant[’s] as though it were sitting as the trier of fact.” (Id. at 856.) However, the court “must . . . determine what any evidence or inference could show or imply to a reasonable trier of fact.” (Ibid., emphasis original.)

DISCUSSION

Plaintiff asserts one cause of action for negligence against Defendant, alleging that it owns the property at which the filming occurred. A property owner has a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) However, Defendant has proffered a declaration from Eric Leuze (“Leuze”), who is Defendant’s Vice President of Asset Management. Leuze states under oath that Defendant does not own, lease, operate, or control the premises where Plaintiff’s accident occurred. (Declaration of Eric Leuze, ¶¶ 4, 5.) Plaintiff proffers no evidence to rebut this showing, based upon which the Court grants the motion for summary judgment.

In the alternative, even if Defendant owned the property, the Court could grant summary judgment. Defendant proffers evidence that nothing on the property caused Plaintiff’s injury. During his deposition, Plaintiff testified that his injury was a result of filming the scene in one shot rather than two shots. (Declaration of Adam Levin, Exh. D, pp. 182-183.) Plaintiff also testified that he was injured because another actor, Defendant Robert Patrick, tackled him before Plaintiff had positioned his body to absorb the impact. (Id., Exh. D, pp. 203-204.) Indeed, Plaintiff testified that the filming location itself did not cause his injuries. (Id., Exh. D, p. 207.) This evidence is sufficient to meet Defendant’s burden to show that the premises did not create an unreasonable risk of harm to Plaintiff, and that the premises did not cause Plaintiff’s injuries. Again, Plaintiff proffers no evidence to rebut this showing. Therefore, the motion is granted.

CONCLUSION AND ORDER

Defendant’s motion for summary judgment is granted. Defendant is to give notice, and file proof of service of such.

DATED: June 4, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court