Case Number: BC695312 Hearing Date: March 07, 2019 Dept: 2

Motion by Defendant, CBS Broadcasting, Inc. (“CBS”) for Summary Judgment, or in the Alternative Summary Adjudication, filed on 12/7/18 is GRANTED. Defendant CBS has established it is entitled to judgment on Plaintiff’s entire complaint based on the undisputed material facts asserted.

Plaintiff’s opposition was not untimely filed as Defendant contends in Reply. The opposition was due “not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.” Cal. Code Civil Procdure§437c(b)(2). The hearing was originally scheduled for 2/22/19. Thus, the opposition was due on 2/8/19. Plaintiff allowed an extra week for service by serving the documents on 2/1/19 by mail.

The Court declines to strike the opposition although Plaintiff did not comply with formatting requirements for the opposing separate statement which requires Plaintiff to use a 2-column format setting forth Defendant’s material fact in the first column. Plaintiff is required to set forth the nature of the dispute and evidence in support in the second column. Cal Rules of Court 3.1350(h).

The Court has discretion to grant or deny summary judgment based upon a non-conforming separate statement. The prevailing view is to consider the merits of the motion if it involves a simple issue with minimal evidentiary support, which is the case here. United Community Church v. Garcin (1992) 231 Cal.App.3d 327, 337.

Regardless, Defendant has not shown any prejudice resulting from the foregoing defect. The reply and supporting papers were considered by the Court as has Plaintiff’s responsive separate statement in conjunction with the Defendant’s separate statement, which consists of only 20 facts.

The parties do not dispute the salient facts. The case arises from a trip and fall accident that occurred on the sidewalk adjacent to the CBS Studios Radford Center in Studio City. UF 1. Whether the specific address is 4200 Radford Avenue or 4024 Radford Ave is immaterial. The parties agree that the incident occurred on a public sidewalk adjacent to the Defendant’s property.

Plaintiff, as a participant, agreed to appear and participate in “The Talk” and have her name, voice, appearance, or personal information be included in “The Talk.” UF 12. Plaintiff does not dispute that as a condition precedent to Plaintiff’s participation, Plaintiff signed a release of all liability in favor of CBS and its subsidiaries, including the talk. UF 8. Plaintiff disputes only the scope of the release, contending that it releases liability only for injuries in connection with “appearance and participation.”

The motion is GRANTED since the undisputed facts establish that Plaintiff signed an unambiguous release of liability that is enforceable.

A release of liability is enforceable so long as it is clear, unambiguous, and explicit in expressing the parties’ intent. Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal. App. 4th 1301, 1304-1305.

The broad language of the release will be enforced so long as the act of negligence is “reasonably related to the object or purpose for which the release was given.” Paralift, Inc. v. Superior Court (1993) 23 Cal. App. 4th 748, 757.

A contract is governed by its clear and explicit language, and understood in its ordinary and popular sense. Cal Civil Code § 1638; Cal. Civil Code § 1644. Contract interpretation is a question of law for the Court. Waller v. Truck Ins. Exchange, Inc. (1995) 11 Cal.4th 1, 18.

Contract interpretation is solely a judicial function “when it is based on the words of the instrument alone or where there is no conflict in the extrinsic evidence.” City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 395.

The release of “all claims” is broadly construed to include claims that are not expressly enumerated in the release. Jefferson v. California Dept. of Youth Authority (2002) 28 Cal.4th 299, 305.

The undisputed facts establish that the broad language of the release encompasses the injury sustained by Plaintiff, which the parties do not dispute occurred on the public sidewalk adjacent to the Defendant’s studio. UF 4.

Plaintiff contends that she was not standing in line for entry to the studio at the time of her fall; she was walking down the sidewalk but had not reached the people who appeared to her to be standing in line. Declaration of Plaintiff, 2:16-18.

Accordingly, Plaintiff contends she had not begun to “participate or appear” because she had not reached the end of the line of persons seeking entry. Opposition 5:21-23.

Plaintiff does not dispute that the express terms of the agreement releases Defendant “for any loss … of any kind … which I may now have or may hereafter acquire arising out of or in connection with my appearance of participation in the Series … .” UF 9.

She also does not dispute the portion of UF 8, that Plaintiff signed the release of all liability “prior to and as a condition precedent to Plaintiff’s participation.” UF 8.

The contract’s language “is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity.” Civ. Code, § 1638.

Plaintiff admits that she drove to CBS Studios “for the purpose of attending a taping of a television show known as The Talk.” Declaration of Plaintiff, 2:1-3. She signed the release of liability, as a “condition precedent” to her participation. UF 8. She released Defendant from liability for any loss “arising out of or in connection with” her appearance or participation.

Plaintiff admits that the process of “lining up” was for the purpose of gaining entrance to the taping. Declaration of Plaintiff, 2:16-18. Plaintiff does not dispute the portion of UF 4 that while proceeding down the public sidewalk towards the end of the line of others wishing to enter the premises, Plaintiff tripped and fell on the sidewalk adjacent to the premises. UF 4.

Therefore, the contract language, reasonably construed and read in the context of the undisputed facts, establishes that the process of lining up, which is where Plaintiff was headed was “in connection with” Plaintiff’s participation in the taping. The trip and fall arose out of her participation. There is no evidence that Plaintiff was at the studio for any other reason.

Defendant does not owe a duty to Plaintiff with respect to the condition of the sidewalk since Plaintiff fell on a public sidewalk. UF 16. Plaintiff disputes what street she was “near” to, but this is immaterial. What is material is that Plaintiff did not fall on Defendant’s property. Plaintiff does not dispute that it is the City of Los Angeles who is charged with the responsibility of receiving complaints and notices regarding cracked or damaged public sidewalks. UF 17-18.

The affirmative duty to act for the protection of individuals coming upon the land “is grounded in the possession of the premises and the attendant right to control and manage the premises.” Preston v. Goldman, (1986) 42 Cal.3d 108, 118-119.

There is no dispute that Defendant did not possess or control the public sidewalk.

Plaintiff contends that while abutting property owners are not liable to pedestrians for defects in the sidewalk under the “Sidewalk Accident Decisions,” Defendant remains liable if the adjacent land owner created the injurious sidewalk condition. Jones v. Deeter (1984) 152 Cal.App.3d 798, 803.

Plaintiff has not persuasively established that the cracked sidewalk was “somehow attributable” to Defendant. Opposition 7:23-25. Under Jones, there must be evidence that CBS created the condition. Plaintiff argues that Defendant knew of the sidewalk condition, knew that audience members would stand there, but took no action and did not call the City of Los Angeles.

This argument depends on establishing that Defendant had a duty to third parties to report the condition of public property. As Preston makes clear the duty owed to persons coming upon land “is grounded in the possession of the premises and the attendant right to control and manage the premises.” Preston at 118-119. Plaintiff does proffer any evidence to dispute that Plaintiff fell on a public sidewalk as opposed to any property under Defendant’s possession or control. UF 16.

Defendant argues that any lack of negligence on its part precludes any claim for indemnity, and therefore, it does not owe the City a duty to indemnify. Motion, 13:9-10. Defendant did not proffer any facts in its separate statement to separately adjudicate its duty owed to the City of Los Angeles for indemnity. The Notice of Motion is limited to the adjudication of Plaintiff’s causes of action, not the City of Los Angeles’s claims of indemnity asserted against Defendant. Motion, 2:7-14. Therefore, adjudication of any indemnity claims is improper.

Moving party is ordered to give notice.

Case Number: BC698933 Hearing Date: March 07, 2019 Dept: 2

Plaintiff’s Motion for an Order Deeming Requests for Admission Admitted; Request for Sanctions, filed on 2/8/19, is DENIED provided Defendant submits a copy of the verified responses purportedly served on Plaintiff. Cal. Code Civil Procedure §2033.280(b). Declaration of Paul Sullivan, ¶ 2.

Defense counsel, Paul Sullivan, asserts that Defendant served verified responses, however, defense counsel did not attach the verified responses to his declaration as he asserts.

The request for sanctions is DENIED as the notice does not specify against whom sanctions are sought. Requesting party must identify in the notice, the person, party and attorney against whom the sanction is sought as well as the type of sanction sought. Cal. Code Civil Procedure § 2023.040.

Moving party is ordered to give notice.