Case Number: BC639088 Hearing Date: March 07, 2018 Dept: 92

ERNEST KEARNEY,

Plaintiff,

vs.

KAISER FOUNDATION HEALTH PLAN INC.,

Defendant.

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CASE NO: BC639088

[TENTATIVE] ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Dept. 92

Hon. Marc Gross

1:30 p.m.

March 7, 2018

Defendants Kaiser Foundation Health Plan, Inc.’s and Kaiser Foundation Hospitals’ Motion for Summary Judgment is GRANTED.

The Court considered the moving papers and opposition.

BACKGROUND

Plaintiff Ernest Kearney (“Plaintiff”) filed this action against Defendants Kaiser Foundation Health Plan, Inc. (“KFHP”) and Does 1-50. The sole cause of action alleged against defendant is for premises liability. Plaintiff alleges that “on or about November 6, 2014 [he] was upon said premises of defendants…at or near 765 W. College Street, Los Angeles, California, and as a proximate result of the negligence of said defendants in constructing, repairing, owning, operating, managing, maintaining, and controlling said premises, plaintiff was injured and sustained damages…” (Complaint, ¶ 3). On January 25, 2017, Plaintiff filed an “Amendment to Complaint,” naming Kaiser Foundation Hospitals (“KFH”) in lieu of Doe 1. On February 27, 2017, KFHP and KFH filed their answer. Trial is set for May 3, 2018.

Defendants move for summary judgment, on the basis that there is no triable issue of material fact and they are therefore entitled to judgment as a matter of law.

Legal Standard

The purpose of a motion for summary judgment or summary adjudication “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 843. “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Adler v. Manor Healthcare Corp. (1992) 7 Cal. App. 4th 1110, 1119.

“On a motion for summary judgment, the 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.” CCP § 437c(p)(2). “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.” CCP § 437c(p)(2). “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.

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” Avivi, 159 Cal. App. 4th at 467; CCP §437c(c).

Discussion

In response to Defendants’ Form Interrogatory No. 11.2, plaintiff identified that the subject incident occurred on November 6, 2014 at about 12:35 a.m. at 765 West College in Los Angeles. (Firth Decl., ¶ 4, Exhibit “C”). Plaintiff claims that Defendants, “through [their] agents, employees and contractors negligently allowed tile to be placed on a walking surface, which tile was slippery and created a dangerous condition, of which there was no warning nor safeguarding against.” (Id., Response to No. 17.1).

Civil Code § 1714(a) states, in part: “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want or ordinary care or skill in the management of his or her property…” The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.” Castellon v. U.S. Bancorp (2013) 220 Cal. App. 4th 994, 998 (citing Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1205; Civil Code § 1714(a)). “As a general rule, each person has a duty to use ordinary care and is liable for injuries caused by his failure to exercise reasonable care in the circumstances.” Romero v. Superior Court (2001) 89 Cal. App. 4th 1068, 1080 (citation omitted) (internal quotations omitted). A landowner has a duty of ordinary care in the management of his or her premises in order to avoid exposing persons to an unreasonable risk of harm. Scott v. Chevron U.S.A. (1992) 5 Cal. App. 4th 510, 515; Brooks v. Eugene Burger Management Corporation (1989) 215 Cal. App. 3d 1611, 1619.

In Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764, the Supreme Court summarized the so-called Rowland factors for determining whether a duty of care exists: “In the Rowland decision, this court identified several considerations that, when balanced together, may justify a departure from the fundamental principle embodied in Civil Code section 1714: ‘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.’” Id. at 771 (citing Rowland v. Christian (1968) 69 Cal. 2d 108). Accord, Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1213. Although foreseeability and the extent of the burden to the defendant are ordinarily the crucial considerations, one or more of the Rowland factors may be determinative of the duty analysis in a given case. Castaneda, supra; Delgado v. Trax Bar & Grill (2005) 36 Cal. 4th 224, 237, fn. 15. Legal duty in negligence causes of action is a question of law. Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.

“Because the owner is not the insurer of the visitor’s personal safety, the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability. Although the owner’s lack of knowledge is not a defense, [t]o impose liability for injuries suffered by an invitee due to [a] defective condition of the premises, the owner or occupier must have 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” Ortega, supra, at 1206; accord, Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal. App. 4th 472, 476.

At the outset, the court notes that Plaintiff’s opposing separate statement reflects non-compliance with CCP § 437c(b)(3) (i.e., “[t]he opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence”) and California Rules of Court Rule 3.1350(f)(2) (i.e., “[a]n opposing party who contends that a fact is disputed…state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers”). The court treats Plaintiff’s Response to KFHP’s and KFH’s Material Facts Nos. 14 and 20 as undisputed, but declines to treat No. 25 as such, inasmuch as No. 25 is a legal conclusion.

Defendants contend that they had no duty to plaintiff because there was no dangerous condition. And, because there was no dangerous condition to warn or protect against, defendants did not breach any duty to plaintiff. Defendants further argue that even if there was a dangerous condition, they did not have actual or constructive notice of same.

At the time of the fall, plaintiff was working for Securitas, serving as a security guard. ((UMF No. 3). He worked midnight to 8:00 a.m., patrolling the hospital boundaries at the Kaiser mental health facility. (UMF No. 4). Plaintiff was aware that construction work was being done on the premises that week, working in the hallway laying tile. (UMF No. 5). Based on the daily activity logs, the only areas where the tile contractors would have been working were the men’s restroom, conference room and back corridor. (UMF No. 22). There were two painters in the cafeteria offices and serving area. (Id.).

On the date of the fall, plaintiff testified he arrived at 11:45 p.m. and obtained the radio from the guard station in the nursing unit. (UMF No. 12). He then went back down the hallway to the back entry. (Id.) The tile had already been replaced on that hallway. (Id.) When Plaintiff arrived at the back entry, he was notified via his radio that his assistance was requested on the second floor. (UMF No. 13). Plaintiff then turned around to retrace his steps, but decided to cut through the kitchen serving area to get to another elevator. (UMF No. 14). Plaintiff testified as he walked into the serving area, his right heel hit the floor and then his foot went out from under him. (UMF No. 18). There was no tile being laid or any construction work being done in the area where Plaintiff alleges he fell. (UMF No. 23). At deposition, Plaintiff testified that he noticed no problems with the new tile that had been laid (Ex. G), that he did not know if there was tile in the cafeteria area where he fell, then that there was no tile there, then that he did not know if there was tile there but had no information that the condition of the floor at the time of his fall was any different than in the days before (Ex. K), and that there was some unknown substance on the floor but he did not know how long it had been there or where it came from (Ex. O).

However, even if there were some substance on the floor at the time of Plaintiff’s fall, Defendants submitted evidence that they had no actual or constructive notice of such condition. Kaiser construction supervisor, Anthony Herrera (“Herrera”), was on the premises that evening. (UMF No. 20). Herrera arrived at approximately 9:00 p.m. and stayed until approximately midnight. (Id.). While there, Herrera worked with the contractors, including the flooring contractor to identify the areas where they would be working overnight and he inspected the construction areas to ensure those areas were marked off with cones or caution tape. (UMF No. 21). Herrera walked through the cafeteria and serving area during his inspection at about midnight to ensure the area was clear and safe and to ensure that the area was clear of construction materials and debris (UMF Nos. 20-24).

Plaintiff submitted no evidence that Defendants were or should have been aware of any substance on the floor between midnight and when Plaintiff claims to have fallen, at 12:35 a.m. Plaintiff argues that there is an inference that the construction workers placed the substance on the floor and that they are Defendants’ agents whose knowledge should be imputed to Defendants. The problem is that Plaintiff submitted no evidence or authority to support this argument. Thus, the Court rejects it.

The court therefore GRANTS Defendants’ motion for summary judgment.

Moving parties are ordered to give notice of this ruling.

IT IS SO ORDERED.