Case Number: BC650508 Hearing Date: March 18, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANTS LOS ANGELES DODGERS LLC, DODGER TICKETS LLC, DODGER TICKETS MANAGER CORP., AND LA HOLDCO LLC’S MOTION FOR SUMMARY JUDGMENT

On February 10, 2017, Plaintiff Gregory Nalbandian (“Plaintiff”) filed this action for motor vehicle negligence and premises liability relating to an August 19, 2016 vehicle versus pedestrian accident. Defendants Los Angeles Dodgers LLC, Dodger Tickets LLC, Dodger Tickets Manager, Corp., and LA Holdco LLC (collectively, “Defendants”) move for summary judgment on the second cause of action – the only one asserted against them – on the grounds they breached no duty of care owed to Plaintiff and any actions or omissions by Defendants were not the proximate cause of Plaintiff’s injuries.

II. FACTUAL BACKGROUND

On August 19, 2016, Plaintiff and his wife, Brooke Japhet (“Japhet”), had plans to attend a rock concert at Dodger Stadium. (Undisputed Material Fact “UMF” No. 1.) Plaintiff and Japhet traveled to the concert in their vehicle and turned onto an access road leading to the Dodger Stadium premises. (UMF Nos. 2, 3.) The access lane consisted of approximately six lanes of vehicles that were slowly making their way towards auto gates where concert attendees paid for their parking and then entered the parking lots. (UMF No. 4.) The final lane of the access road was designated for vehicles that were exiting the premises. (UMF No. 5.)

As they were waiting in the line of cars, Japhet got out of the car and walked across multiple lanes of vehicles on the access road intending to walk onto the premises to attend the concert. (UMF No. 8.) Plaintiff pulled the car to the side of the road, turned on the hazard lights, and got out of the vehicle. (UMF No. 9.) Plaintiff followed after Japhet on foot, weaving through multiple lanes of cars. (UMF No. 10.) When Plaintiff reached the final lane of the access road, he was struck by a car bearing an Uber decal, that was exiting the premises. (UMF No. 11.) Plaintiff alleges Defendants failed to take reasonable steps to prevent the collision.

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.)

“[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

Plaintiff’s Objections to Evidence

Objection Nos. 1, 4-8 are OVERRULED.

Objection Nos. 2, 3, 9 and 10 are SUSTAINED as to lacks personal knowledge.

Defendants’ Objections to Evidence

Objection Nos. 1, 6, 8 OVERRULED

Objection Nos. 2-5, 7, and 9-18 are SUSTAINED as to lacks foundation and speculation.

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.)

Foreseeability

On the date of the incident, Los Angeles Dodgers LLC controlled and operated the Dodger Stadium premises, including the access road where the incident occurred. (UMF No. 28.) Defendants acknowledge they owed a general duty of care, but contend that the particular injury and events were not reasonably foreseeable, and therefore, they breached no duty owed to Plaintiff.

Defendants rely on Sakai v. Massco Investments LLC (2018) 20 Cal.App.5th 1178, where the plaintiff was attempting to park in a crowded parking lot on the defendant’s premises. Finding no spaces, the plaintiff attempted to back up and exit the lot when he hit the front of another car owned by a third-party. (Id. at p. 1182.) Immediately afterwards, the two drivers exited their cars to inspect the damage and the third-party driver appeared to be “pretty pissed off.” (Ibid.) The third-party then got back into his car and without warning, backed up into the street at a high rate of speed and drove away, striking the plaintiff and dragging him into the street and causing serious bodily injury. (Ibid.) Summary judgment was granted in favor of the defendant premises owner on grounds of no foreseeability and no duty. (Id. at p. 1183.) In affirming the trial court’s ruling, the appellate court held, “a duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated,” and there was “no logical connection between [the defendant’s] alleged failure to more closely regulate/supervise the parking lot and the conduct that directly caused the plaintiff’s injuries.” (Id. at p. 1187-1188.) Further, the court noted that while the defendant “may have been on notice that its parking lot was or would be more crowded with cars and pedestrians . . . there was no evidence that [it] was also on notice that at the same time cars were exiting (or entering or transiting) the parking lot at dangerous rates of speed and putting pedestrians in the lot at risk of serious injury.” (Id. at p. 1187.)

Defendants argue that, like in Sakai, the unpredictable chain of events that led to Plaintiff’s injuries was not reasonably foreseeable. While Defendants knew the access road was crowded with cars entering the premises to attend the concert, Defendants contend it was not foreseeable that Plaintiff would leave his vehicle, weave through lanes of cars, and then be struck by a speeding motorist exiting the premises. Plaintiff testified at his deposition that police officers and security personnel were “all over the place” on and around the access road. (UMF No. 7.) Defendants had no knowledge of prior similar occurrences of pedestrians being struck in the vehicle lanes and it was unforeseeable that Plaintiff would leave his car on the side of the access road, weave through lanes of traffic, and be hit.

Plaintiff argues this case is distinguishable from Sakai, where the third-party’s fleeing the accident was more akin to criminal conduct, while here the conduct was negligent, making it more foreseeable. Plaintiff argues that the conduct which occurred here—negligent speeding downhill in an empty exit lane—is one that Defendants could and should have reasonably anticipated. Plaintiff slights the fact that he left his car and walked through several lanes of traffic before he was hit. Instead, he focuses on the foreseeability of a speeding car exiting the event.

Plaintiff cites to Robison v. Six Flags Theme Parks, Inc. (1998) 64 Cal.App.4th 1294, where an out-of-control car left the parking area at Magic Mountain amusement park, entered a picnic area, and struck a picnic bench, seriously injuring the plaintiff. The court in Robison held that the traffic and picnic tables were placed into a configuration where the cars could hit the tables and the resulting danger could be identified by simple observation. (Id. at p. 1301.) “[F]or example, it was open to simple observation that Magic Mountain had aimed a heavily traveled parking lane (with a speed limit of twenty-five miles per hour) directly at the picnic table with no separation other than forty feet of flat grass, and that a car traveling at a speed no higher than Magic Mount’s own speed limit would cover this distance in less than two seconds, too short a time to allow for reliable evasive action by an unsuspecting person seated at a picnic table, possibly with his or her back to the oncoming car.” (Ibid.) Therefore, the court concluded that the confluence of events was created by Magic Mountain’s own design of the parking lot and picnic area and the risk of danger to others was reasonably foreseeable.

This case is distinguishable. In contrast to Robison, it is undisputed that Plaintiff was walking through lanes of cars where pedestrians were not supposed to be walking at the time of the accident. It was not by Defendants’ design that Plaintiff was at the particular location when he was hit. Plaintiff was not in a designated pedestrian area or cross walk. He was in the path of an oncoming vehicle because he left his car and walked through traffic. Unlike in Robinson, the design of the road and Plaintiff’s location was not such that the risk of harm by a speeding vehicle exiting the stadium was obvious by simple observation.

This case is more similar to Sakai than it is to Robison. Similar to Sakai, Defendants may have known that their parking lot would be more crowded than usual, but had no reason to foresee that Plaintiff would exit his car, weave through lanes of cars, and then be hit by a vehicle existing the stadium.

The Court is also unconvinced by Plaintiff’s expert’s arguments that Defendants should have known there would be ride share operators, that passengers in cars who had been waiting in jammed traffic would attempt to walk into the venue and would cross the roadway, that ride share drivers, such as Uber drivers, are not professional taxi or shuttle drivers who obtain special licenses and training, and that the night-time sky was dark creating poor visibility of pedestrians crossing the lanes. The expert gives no factual basis for his conclusions. He states his conclusions are based on this experience, but he does not describe pertinent experience. He supervised the electrical department at UCLA and managed street lighting and power projects. It is unclear whether he determined where street lighting should be placed, or managed the workers who installed the lighting, or something else. He says he “interacted” with campus police about traffic control for events at UCLA. He does not say the managed the projects from the perspective of safety or traffic control or that he has any expertise, education, or experience in traffic safety, traffic control or crowd management.

The Court may reject an expert’s conclusion “that does not contain ‘a reasoned explanation illuminating why the facts have convinced the expert’ . . . [Citations].” (Taylor v. Trimble (2017) 13 Cal.App.5th 934, 945, n.15; Bay Area Rapid Transit Dist. V. Superior Court (1996) 46 Cal.App.4th 476, 482 [“The value of opinion evidence rests not in the conclusion reached but in the factors considered and the reasoning employed].”) Here we have only conclusions about foreseeability from the expert. He does not identify the facts or experience on which he bases his assertions about the practices of Uber drivers, the “standard practice for commercial venues,” the “standard of care” required in access roads, and the “industry standard of care.” In sum, Plaintiff did not submit admissible evidence showing a disputed issue of fact concerning the foreseeability of the incident.

Causation

“While proximate cause ordinarily is a question of fact, it may be decided as a question of law if ‘ “under the undisputed facts, there is no room for a reasonable difference of opinion.” ‘ [Citation.]” Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1303 [affirming grant of summary judgment on causation].) “To establish the element of actual causation, it must be shown that the defendant’s act or omission was a substantial factor in bringing about the injury. [Citation.]” (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752 [affirming grant of summary judgment for plaintiff’s failure to establish causation].)

Once the defendant satisfies the burden of demonstrating the plaintiff cannot prove defendant’s negligence caused the injury, “[t]he burden then shift[s] to [the plaintiff] to explain how things may have played out differently” had the defendant not acted negligently.” (Grotheer, supra, 14 Cal.App.5th at p. 1304.) The plaintiff must establish a link between the breach and the injury—i.e., “some substantial link or nexus between omission and injury.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778.) Further, proof of causation cannot be based on an expert’s opinion based on inferences, speculation and conjecture. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 487 [“‘where an expert bases his conclusion upon . . . factors which are speculative, remote or conjectural, . . . the expert’s conclusion cannot rise to the dignity of substantial evidence.’ [Citation.]”].) “[T]he plaintiff must do more than simply criticize, through the speculative testimony of supposed security ‘experts,’ the extent and worth of the defendant’s security measures, and instead must show the injury was actually caused by the failure to provide greater measures.” (Saelzler, supra, 25 Cal.4th at p. 774.) Especially where the alleged negligence is premised on a failure to take additional precautions or measures, summary judgment may be granted where the plaintiff has failed to show the absence of precautions caused the injuries. (See e.g., Saelzler, supra, 25 Cal.4th at p. 775; Leslie G., supra, 43 Cal.App.4th at p. 487; Noble, supra, 168 Cal.App.3d at p. 917; Thai v. Stang (1989) 214 Cal.App.3d 1264, 1273.)

Defendants argue that no act or omission by them was the proximate cause of Plaintiff’s injuries. Japhet testified that the car that hit Plaintiff appeared “unexpectedly” and that there was nothing that could have been done to stop the accident. (Japhet Depo., 66:7-67:2.) Further, Plaintiff testified at his deposition that he did “not believe the Dodgers caused this accident” and that as to his injuries, he did “not believe the Dodgers had anything to do with it” and that Uber is responsible for its allegedly reckless driver. (UMF Nos. 20, 21; Pltff’s Depo., 82:14-83:17.) However, Plaintiff testified that he believed Dodger Stadium parking lot or the stadium itself had an obligation “to settle what happened.” (Pltff’s Depo., 83:14-17.) This satisfies Defendants burden, and shifts the burden to Plaintiff to show a triable issue of fact.

Plaintiff argues the issue of causation should be left to the trier of fact, who could reasonably determine that the failure to use traffic controls and the lack of visibility contributed to the collision. But this argument is not evidence of a disputed fact regarding causation. Apart from the expert’s declaration, which lacked foundation for his conclusions, Plaintiff did not submit evidence that the accident could have been avoided with additional safety precautions. “[P]roof of causation cannot be based on mere speculation, conjecture and inferences drawn from other inferences to reach a conclusion unsupported by any real evidence. . . . [Citation.]” (Padilla v. Rodas (2008) 160 Cal.App.4th 742, 752 [affirming grant of summary judgment for plaintiff’s failure to establish causation].) At most, Plaintiff presents speculation that if Defendants had installed additional safety measures such as lights, cross walks, and signs for exiting cars to slow down, Plaintiff would not have been hit. But that is not supported “any real evidence.”

Section 846

Defendants argue Plaintiff is asserting a cause of action for willful failure to warn of a dangerous condition under Civil Code section 846 fails as a matter of law. Civil Code section 846 provides that an owner of land does not owe a duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions. (Civ. Code, § 846, subd. (a).) The section states it does not limit the liability “which otherwise exists” for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. (Civ. Code, § 846, subd. (d)(1).) The section “does not create a duty of care or ground of liability for injury to person or property.” (Civ. Code, § 846, subd. (e).

Plaintiff argues that a rock concert is a recreational activity covered by section 846. Be that as it may, section 846 expressly says it does not create a duty of care or basis for liability. Nor does it create a duty to warn; rather the section refers to liability for willful or malicious failure to warn “which otherwise exists.” By its own terms, section 846 creates an immunity with certain exceptions. (Pacific Gas & Electric Co. v. Superior Court (2017) 10 Cal.App.5th 563, 565.) The purpose of the statute was to grant immunity to landowners to encourage them to allow free use public use of their property. (Id. at p. 573-574.) The exceptions “reflect situations in which the Legislature did not think ‘governmental encouragement’ in the form of immunity was necessary to achieve that purpose.” (Id. at p. 574.)

Both parties seem to miss the point that the Judicial Council form complaint used by Plaintiff does not set up section 846 as the basis for a separate cause of action. Rather, the section is mentioned as an allegation within the second cause of action for negligence. If Defendants were to assert immunity under section 856, Plaintiff could argue defendants are not entitled to immunity because their actions fall within the “willful or malicious failure to guard or warn” exception. In any event, Defendant cannot move for summary judgment on one allegation within a cause of action. Even if the Court were to strike the allegation about section 856, the second cause of action would remain.

Other Dodgers Defendants

Finally, Defendants state that Plaintiff named fourteen defendants connected to the Dodgers organization, but served the summons and complaint on only four of them—the moving parties. They state summary judgment should be granted as to these other named defendants because they did not own, operate, or control the premises at the time of the incident. The Court will not rule as to these named but unserved defendants, as they have not been served and they have not appeared in this action.

VI. CONCLUSION

In light of the foregoing, the Motion for summary judgment on the second cause of action as to the Defendants is GRANTED.

Moving party to give notice.