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This case was last updated from Los Angeles County Superior Courts on 05/26/2019 at 15:15:19 (UTC).

DAVID LEE VS KIMBERLY GALICIA DBA SKYGLIDER ET AL

Case Summary

On 12/05/2016 DAVID LEE filed a Personal Injury - Other Personal Injury lawsuit against KIMBERLY GALICIA DBA SKYGLIDER. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1558

  • Filing Date:

    12/05/2016

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

STEPHEN I. GOORVITCH

 

Party Details

Plaintiff and Petitioner

LEE DAVID

Defendants, Respondents and Cross Plaintiffs

SKYGLIDER

PLAZA WEST COVINA LP

DOES 1 TO 30

GALICIA KIMBERLY DBA SKYGLIDER

STARWOOD RETAIL PROPERTY MANAGEMENT LLC

PROFESSIONAL SECURITY CONSULTANTS

STARWOOD RETAIL PARTNERS LLC DOE 2

Defendant and Cross Defendant

PROFESSIONAL SECURITY CONSULTANTS

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

MARKARIAN CHRISTOPHER V. ESQ.

MESAROS CHRISTOPHER P. ESQ.

Defendant Attorneys

WU SANDY T

WILSON ELSER MOSKOWITZ EDELMAN & DICKER

 

Court Documents

ORDER AND STIPULATION TO CONTINUE TRIAL FSC AND RELATED MOTION/DISCOVERY DATES PERSONAL INJURY COURTS ONLY

5/3/2018: ORDER AND STIPULATION TO CONTINUE TRIAL FSC AND RELATED MOTION/DISCOVERY DATES PERSONAL INJURY COURTS ONLY

Substitution of Attorney

5/7/2018: Substitution of Attorney

Amendment to Complaint (Fictitious/Incorrect Name)

5/9/2018: Amendment to Complaint (Fictitious/Incorrect Name)

PROOF OF SERVICE SUMMONS

5/22/2018: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

5/22/2018: PROOF OF SERVICE SUMMONS

ANSWER OF DEFENDANTS STAR WOOD RETAIL PARTHERS, LLC AND STAR WOOD PROPERTY MANAGEMENT, LLC

7/13/2018: ANSWER OF DEFENDANTS STAR WOOD RETAIL PARTHERS, LLC AND STAR WOOD PROPERTY MANAGEMENT, LLC

Minute Order

10/23/2018: Minute Order

Answer

1/11/2019: Answer

Proof of Service by Mail

1/22/2019: Proof of Service by Mail

Notice

2/20/2019: Notice

Answer

3/5/2019: Answer

Notice

3/8/2019: Notice

Stipulation and Order

3/26/2019: Stipulation and Order

CoverSheet

12/5/2016: CoverSheet

PROOF OF SERVICE SUMMONS

12/13/2016: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

12/19/2016: PROOF OF SERVICE SUMMONS

ANSWER OF DEFENDANT PLAZA WEST COVINA, LP TO PLAINTIFF'S UNVERIFIED COMPLAINT

1/24/2017: ANSWER OF DEFENDANT PLAZA WEST COVINA, LP TO PLAINTIFF'S UNVERIFIED COMPLAINT

DECLARATION OF ASHAN K. PEIRIS RE: DUE DILIGENCE IN SERVING CROSS-COMPLAINT

4/18/2017: DECLARATION OF ASHAN K. PEIRIS RE: DUE DILIGENCE IN SERVING CROSS-COMPLAINT

22 More Documents Available

 

Docket Entries

  • 05/10/2019
  • at 08:30 AM in Department 5, Stephen I. Goorvitch, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 04/26/2019
  • at 10:00 AM in Department 5, Stephen I. Goorvitch, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 03/26/2019
  • Stipulation and Order ([Proposed] Order to Continue Trial - FSC: 11-20-19 Trial: 12-04-19); Filed by Professional Security Consultants (Defendant)

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  • 03/08/2019
  • Clerk of Court Notice of Clerical Error and Correction; Filed by Clerk

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  • 03/05/2019
  • Answer (Cross-Def Professional Security Consultant's General Denial and Answer to Cross-Complainant Plaza West Covina, LP, Starwood Retail Partners, LLC and Starwood Tetail Prop Mgmt LLC's First Amended Cross-Complaint); Filed by Professional Security Consultants (Cross-Defendant)

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  • 02/22/2019
  • Notice of Change of Address or Other Contact Information; Filed by Christopher P. Mesaros, Esq. (Attorney)

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  • 02/22/2019
  • Request for Dismissal; Filed by Plaza West Covina, LP (Cross-Complainant); Starwood Retail Partners, LLC (Doe 2) (Cross-Complainant); STARWOOD RETAIL PROPERTY MANAGEMENT, LLC (Cross-Complainant)

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  • 02/20/2019
  • Notice (of Unavailability); Filed by Professional Security Consultants (Cross-Defendant)

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  • 01/22/2019
  • Proof of Service by Mail; Filed by Plaza West Covina, LP (Cross-Complainant)

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  • 01/11/2019
  • Answer; Filed by Professional Security Consultants (Defendant)

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35 More Docket Entries
  • 02/08/2017
  • Cross-Complaint; Filed by Plaza West Covina, LP (Defendant)

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  • 01/24/2017
  • ANSWER OF DEFENDANT PLAZA WEST COVINA, LP TO PLAINTIFF'S UNVERIFIED COMPLAINT

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  • 01/24/2017
  • Answer; Filed by Plaza West Covina, LP (Defendant)

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  • 12/19/2016
  • Proof-Service/Summons; Filed by David Lee (Plaintiff)

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  • 12/19/2016
  • PROOF OF SERVICE SUMMONS

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  • 12/13/2016
  • Proof-Service/Summons; Filed by David Lee (Plaintiff)

    Read MoreRead Less
  • 12/13/2016
  • PROOF OF SERVICE SUMMONS

    Read MoreRead Less
  • 12/05/2016
  • Summons; Filed by David Lee (Plaintiff)

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  • 12/05/2016
  • Complaint; Filed by David Lee (Plaintiff)

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  • 12/05/2016
  • Complaint

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Tentative Rulings

Case Number: BC641558    Hearing Date: December 16, 2020    Dept: J

HEARING DATE: Wednesday, December 16, 2020

NOTICE: OK

RE: Lee v. Galicia, et al. (BC641558)

______________________________________________________________________________

Plaintiff David Lee’s MOTION FOR RECONSIDERATION

Responding Party: Defendants Starwood Retail Partners, LLC, Plaza West Covina, LP

and Starwood Retail Property Management, LLC

Tentative Ruling

Plaintiff David Lee’s Motion for Reconsideration is DENIED for lack of jurisdiction.

 

Background

Plaintiff David Lee (“Plaintiff”) alleges that on or about October 3, 2015, he sustained injuries while riding a hoverboard. On December 5, 2016, Plaintiff filed a complaint, asserting causes of action against Defendants Kimberly Galicia dba SkyGlider (“Galicia”), Plaza West Covina, LP (“Plaza WC”) and Does 1-30 for:

  1. General Negligence

  2. Premises Liability

    On May 9, 2018, Plaintiff filed an Amendment to Complaint, wherein Starwood Retail Property Management, LLC (“Starwood Property”) was named in lieu of Doe 1. On May 16, 2018, Plaintiff filed another Amendment to Complaint, wherein Starwood Retail Partners, LLC (“Starwood Partners”) was named in lieu of Doe 2. On November 14, 2018, Plaintiff filed an Amendment to Complaint, wherein Professional Security Consultants (“PSC”) was named in lieu of Doe 3.

On August 16, 2019, this case was transferred from Department 5 (personal injury hub) to this instant department. On December 4, 2019, Plaza WC, Starwood Property and Starwood Partners filed a Second Amended Cross-Complaint (“SACC”), asserting causes of action against Galicia, PSC and Roes 1-10 for:

  1. Express Contractual Indemnity

  2. Equitable Indemnity

  3. Apportionment & Contribution

  4. Declaratory Relief

  5. Breach of Contract

  6. Failure to Defend

On July 29, 2020, the court granted Plaza WC’s, Starwood Property’s and Starwood Partners’ motion for summary judgment. On August 6, 2020, the “Judgment on Defendants Starwood Retail Partners, LLC, Plaza West Covina, LP, and Starwood Retail Property Management, LLC’s Motion for Summary Judgment” was filed.

On August 19, 2020, the court granted PSC’s motion for summary judgment. On August 20, 2020, an “Order Granting Summary Judgment in Favor of Defendant Professional Security Consultants” and the “Judgment in Favor of Defendant Professional Security Consultants on Plaintiff’s Complaint” were filed; that day, Plaza WC, Starwood Property and Starwood Partners filed (and email-served) a “Notice of Entry of Judgment or Order.” On September 9, 2020, PSC filed (and email-served) a “Notice of Entry of Judgment or Order.”

On October 19, 2020, Plaintiff filed a Notice of Appeal. A Trial Setting Conference is set for December 16, 2020.

Discussion

The motion is summarily denied for lack of jurisdiction. The motion was filed on August 28, 2020; however, on August 20, 2020, Plaza WC, Starwood Property and Starwood Partners filed (and email-served) a “Notice of Entry of Judgment or Order.” Plaintiff has since filed a Notice of Appeal. The court loses jurisdiction to rule on a pending motion for reconsideration after entry of judgment. (See APRI Ins. Co. v. Sup. Ct. (Schatteman) (1999) 76 Cal.App.4th 176, 181; Branner v. Regents of Univ. of California (2009) 175 Cal.App.4th 1043, 1048.)

Case Number: BC641558    Hearing Date: August 19, 2020    Dept: J

HEARING DATE: Wednesday, August 19, 2020

NOTICE: OK[1]

RE: Lee v. Galicia, et al. (BC641558)

______________________________________________________________________________

Defendant Professional Security Consultants’ MOTION FOR SUMMARY JUDGMENT

Responding Party: Plaintiff, David Lee

Tentative Ruling

Defendant Professional Security Consultants’ Motion for Summary Judgment is GRANTED.

 

Background

Plaintiff David Lee (“Plaintiff”) alleges that on or about October 3, 2015, he sustained injuries while riding a hoverboard. On December 5, 2016, Plaintiff filed a complaint, asserting causes of action against Defendants Kimberly Galicia dba SkyGlider (“Galicia”), Plaza West Covina, LP (“Plaza WC”) and Does 1-30 for:

  1. General Negligence

  2. Premises Liability

    On May 9, 2018, Plaintiff filed an Amendment to Complaint, wherein Starwood Retail Property Management, LLC (“Starwood Property”) was named in lieu of Doe 1. On May 16, 2018, Plaintiff filed another Amendment to Complaint, wherein Starwood Retail Partners, LLC (“Starwood Partners”) was named in lieu of Doe 2. On November 14, 2018, Plaintiff filed an Amendment to Complaint, wherein Professional Security Consultants (“PSC”) was named in lieu of Doe 3.

On August 16, 2019, this case was transferred from Department 5 (personal injury hub) to this instant department. On December 4, 2019, Plaza WC, Starwood Property and Starwood Partners filed a Second Amended Cross-Complaint (“SACC”), asserting causes of action against Galicia, PSC and Roes 1-10 for:

  1. Express Contractual Indemnity

  2. Equitable Indemnity

  3. Apportionment & Contribution

  4. Declaratory Relief

  5. Breach of Contract

  6. Failure to Defend

A Trial Setting Conference is set for August 19, 2020.

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 [emphasis theirs].)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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 of a defense thereto.” (CCP § 437(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.” (Id. at 467; CCP § 437c(c).)

Discussion

PSC moves the court for an order granting summary judgment against Lee and for a order entering judgment in favor of PSC on Plaintiff’s complaint.

Procedural Issues

Exhibits A and B to the Declaration of Sohaila Sagheb filed August 15, 2019, Exhibits 1 and 2 to the Declaration of Eric Forstrom filed January 2, 2020 and Exhibits A, B and E to the Sagheb Declaration filed January 10, 2020 all reflect non-compliance with California Rules of Court (“CRC”) Rule 3.1116(c) (i.e., “[t]he relevant portion of any testimony in the deposition must be marked in a manner that calls attention to the testimony.”) The court admonishes counsel in this regard.

Request for Judicial Notice

PSC’s Request for Judicial Notice (“RJN”) is ruled on as follows: GRANTED as to Exhibit A (i.e., complaint filed December 5, 2016); GRANTED as to Exhibit B (i.e., Amendment to Complaint filed May 9, 2018 naming Starwood Property in lieu of Doe 1 and Amendment to Complaint filed May 16, 2018 naming Starwood Partners in lieu of Doe 2) and GRANTED as to Exhibit C (i.e., Amendment to Complaint filed November 14, 2018 naming PSC in lieu of Doe 3). The court also takes judicial notice of the fact that October 3, 2015 was a Saturday.

Evidentiary Objections

 

PSC’s evidentiary objections are ruled on as follows: SUSTAINED in their entirety.

 

Merits

On December 5, 2016, Plaintiff filed a complaint, asserting causes of action against Galicia, Plaza WC and Does 1-30 for (1) General Negligence and (2) Premises Liability. (RJN, Exh. A.) On May 9, 2018, Plaintiff filed an Amendment to Complaint, wherein Starwood Property was named in lieu of Doe 1. (Id., Exh. B.) On May 16, 2018, Plaintiff filed another Amendment to Complaint, wherein Starwood Partners was named in lieu of Doe 2. (Id.) On November 14, 2018, Plaintiff filed an Amendment to Complaint, wherein PSC was named in lieu of Doe 3. (Id., Exh. C.) Plaintiff alleges that on or about October 3, 2015, at Plaza West Covina located at 112 Plaza Drive, West Covina, California 91790 (“Mall”), “Galicia, doing business as SkyGlider, Plaza [WC]. . . and each of them. . . negligently, and carelessly managed, maintained and/or operated their real property at the subject place so as to be the sole and proximate cause an incident [sic] giving rise to the action herein. On or about said date, Plaintiff was a customer at the property when Defendants. . . negligently and carelessly maintained their property which caused the said incident. (Complaint, GN-1). The complaint goes on to allege that Plaintiff “was offered to try a hoverboard with assistance of an employee, as Plaintiff tried to get off, he fell.” (Id.) Plaintiff alleges that as a result of his fall, Plaintiff sustained bodily injuries which required medical care. (Id.)

At the outset, the court addresses PSC’s contention that it PSC entitled to summary judgment on the basis that Plaintiff’s causes of action against PSC are time-barred. CCP § 335.1 provides: “Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.”

“The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. A recognized exception to the general rule is the substitution under section 474 of new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176 [citations omitted].)

CCP § 474 provides that “[w]hen the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint. . . and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly. . .” “If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Woo, supra, 75 Cal.App.4th at 176.)

“The phrase ‘ignorant of the name of a defendant’ has not been interpreted literally. A plaintiff is ‘ignorant of the name’ if he knows the identity of the person but is ignorant of the facts giving him a cause of action against such person.” (Wallis v. Southern Pac. Transportation Co. (1976) 61 Cal.App.3d 782, 786.)

For purposes of summary judgment, the defendant has the initial burden of presenting evidence affirmatively showing that no reasonable jury could find that the plaintiff was ignorant of its cause of action against the defendant. (See Fara Estates Homeowners Ass’n. v. Fara Estates, Ltd. (9th Cir. 1998) 134 F.3d 377, at *6 [applying Calif. Law].)

Again, the incident occurred on October 3, 2015. The complaint was filed December 5, 2016. PSC became a defendant via an Amendment to Complaint filed November 14, 2018. In its moving papers, PSC claims that “Plaintiff was not ignorant of the facts that he now alleges gives rise to liability as against PSC. Plaintiff knew there was a no skating rule at the Mall. Plaintiff knew that he was not allowed to skate in the mall and he further knew or should have known that the no-skating rule was enforced partly by security. As such, Plaintiff knew all the facts on which his claim of negligence against PSC is now based.” (Motion, 17:20-24.) PSC’s statement, however, is unsupported. PSC has not provided any evidence that Plaintiff actually knew of the basis for PSC’s alleged negligence at the time of the original filing.

The court finds that PSC has not met its initial burden in this regard. PSC’s request for summary judgment on this basis is denied.

PSC has submitted, in part, the following evidence: On October 3, 2015, Plaintiff and his family arrived at the Mall at approximately 5 pm for the purposes of shopping and dining. (Sagheb Decl., Exh. A, 27:12-28:6.) On that occasion, Plaintiff and his wife and daughter had started together at JCPenney but their daughter separated from them. (Id., 41:20-42:45.) as Plaintiff and his wife concluded shopping at JCPenney and were walking towards Macy’s, Plaintiff saw his daughter at the SkyGlider kiosk. (Id., 41:20-42:25.) Plaintiff asked his daughter what she was doing and his daughter said she had tried the SkyGlider and thought it was fun. (Id., 31:20-32:10.) Plaintiff decided to try it himself. (Id.) Once Plaintiff got on board, Galicia held his hand for about 20 seconds. (Id., 31:20-32:10.) Plaintiff testified that when he wanted to get off the board Galicia told him to just “hop off.” (Id., 32:25-38:7.) When Plaintiff tried to do so, he fell backwards and the board went forward. (Id., 32:35-38:7.) After Plaintiff fell Galicia asked Plaintiff is he was okay and he said no. (Id., 66:9-12.) Galicia then asked if Lee wanted security called and Lee said he did. (Id., 66:16-67:5).

Galicia opened the SkyGlider Retail Merchandising Unit (“RMU”) at the Mall on October 3, 2015, the date of the incident. (Sagheb Decl., ¶4, Exh. C., 27:2-9, 73:22-25, 75:18-20). SkyGlider had been open for business for a total of about 7 hours when the incident occurred. (Id., ¶4, Exh. C., 27:2-9, 73:22-25, 75:18-23, 76:1-25; RJN, ¶4; Quintero Decl., ¶12, Exh. B).

PSC contracts with the Mall to perform patrol, observation, and other security services. (Quintero Decl., ¶2, Exh. A.) In October 2015 there were approximately 175 stores and dozens of kiosks and RMUs at the mall. (Id., ¶3.) Generally, per shift in October 2015, PSC had 5-6 guards patrolling the Mall. (Id..) Part of the duties and responsibilities of the patrol guards is to ensure compliance with the Code of Conduct Rules that the Mall posts at the entrances of the Mall as well as in various common areas. (Quintero Decl., ¶4.) The Code of Conduct prohibits skating or any form on Mall premises. (Id.) Quintero, PSC’s Directory of Security on the date of the incident, was advised by Mall management that an RMU had been leased to Skylglider which would be selling hoverboards and that SkyGlider and Galicia were permitted by license and per the terms of its lease with the Mall to demonstrate and permit customers to try hoverboards on a carpeted area on both sides of the RMU measuring approximately 3’ x 6’. (Id.) PSC did not receive any additional instructions regarding SkyGlider and was not asked to render any additional services at the SkyGlider RMU. (Id., ¶5.) PSC was not consulted regarding the terms and conditions of the Mall’s license or lease with SkyGlider and Galicia. (Id., ¶6.) PSC was not asked to post additional detail at the SkyGlider RMU or to take any special precautions with respect to SkyGlider’s business activities. (Id., ¶5.)

PSC’s file pertaining to SkyGlider does not contain any documents suggesting that PSC ever made a report to Mall management that SkyGlider was allowing its hoverboards to be operated outside the carpeted area. (Id., ¶10.) There are also no documents reflecting that the Specialty Leasing Staff, Laura Seanez, or the Mall’s General Manager, Allison Marck, had complained of SkyGlider’s failure to comport with the restrictions on the area in which the hover boards could be demonstrated and tried by customers. (Id.) SkyGlider was never made aware of any infraction by SkyGlider of its License Agreement with the Mall before Plaintiff’s fall. (Id.)

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) “The threshold element of a cause of action for negligence is the existence of a duty to use due care. . . [w]hether this essential prerequisite to a negligent cause of action has been satisfied in a particular case is a question of law to be resolved by the court.” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) “[T]he duty to take particular security measures is determined by ‘a balancing of “foreseeability” of the [wrongful] acts against the “burdensomeness, vagueness, and efficacy” of the proposed security measures.” (Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1119.)

Plaintiff asserts that “PSC is tasked, among other things, with inspecting, maintaining, authorizing, managing and operating the premises for potential liability issues or potential liability concerns both related to merchants not complying with premise requirements or patrons not abiding to premise rules. Further, PSC failed to observe and/or report and/or prohibit. . . Galicia. . . from violating the terms of her rental agreement with Plaza [WC]. . . and failed to uphold the terms of the “Mind Your Manners” and “Code of Conduct” rules and regulations for Plaza [WC]. . .” (Sagheb Decl., ¶8, Exh. G, 4:6-13.) Plaintiff does not assert that PSC had a duty to post specific detail at SkyGlider, that SkyGlider had any customers who had mounted or rode the hover board other than Plaintiff and his daughter in the 7 hours SkyGlider had been in business at the Mall, that PSC had an opportunity to observe SkyGlider’s willingness to permit customers to ride the hover board off the carpeted area designated for their use, that SkyGlider had permitted customers other than Plaintiff and his daughter to ride the hover board off the carpeted area designated for their use, or that PSC had observed or had report of customers riding the hover board off the carpeted area designated for their use.

Here, it is unclear what additional security measure(s) Plaintiff contends PSC had a duty to undertake or why undertaking those measures would have prevented Plaintiff’s fall off the hover board. Although Plaintiff appears to be suggesting “clos[er] monitoring,” there are no facts to suggest that is the case. Plaintiff also does not discuss the impact on the safety of the remaining 174 tenants, vendors and customers if PSC devoted more resources to the SkyGlider RMU. Plaintiffs’ suggestion that PSC should have “posted warning signs advising mall patrons if hover board activity” would not have avoided Plaintiff’s fall.

Additionally, “[b]ecause 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 v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.)

On January 15, 2020, Plaintiff’s counsel made an oral request for CCP § 437c(h) relief, “to the extent that . . . PSC failed to produce additional documents that it was required to in conjunction with Mr. Quintero’s deposition including certain security logs and so forth” and that he believed “that further discover . . . is directly relevant to the issues raised by its motion for summary judgment.” (Sagheb March 4, 2020 Decl., ¶3, Exh. B, 9:25-10:4.) The court granted this request, continued the hearing and allowed for additional briefing. On January 30, 2020, Plaintiff’s counsel emailed PSC’s counsel and requested that PSC produce ‘’patrol logs’ Mr. Quintero referenced in his deposition.” (Id., ¶4, Exh. C.) PSC located and produced to Plaintiff’s counsel its communication and guard activity logs. (Quintero March 4, 2020 Decl., ¶¶2-3, Exhs. A and B.) The documents reflect that PSC had no notice from any sources that the SkyGlider kiosk was permitting its hover boards to be ridden outside of its leased area, and that there was no complaint about or reference to SkyGlider at all in the approximate 7 hours it was in business until Plaintiff’s fall.

Here, there are no disputed facts suggesting that PSC had actual or constructive knowledge of any dangerous condition. The motion, then, is GRANTED.


[1] The motion was filed on August 15, 2019 and originally set for hearing on January 16, 2020. On December 4, 2019, the January 16, 2020 hearing was rescheduled by the court to January 15, 2020. On January 15, 2020, the court continued the hearing, on its own motion, to March 25, 2020 and set the following briefing schedule: supplemental declaration from Plaintiff by February 28, 2020 and reply from moving party by March 13, 2020; notice was waived. On March 17, 2020, the court continued the March 25, 2020 hearing, on its own motion, to June 4, 2020; all counsel were provided notice. On April 23, 2020, the court, on its own motion, continued the June 4, 2020 hearing to August 19, 2020 at 10:00 a.m.; all counsel were provided notice.

Case Number: BC641558    Hearing Date: July 29, 2020    Dept: J

HEARING DATE: Wednesday, July 29, 2020

NOTICE: OK

RE: Lee v. Galicia, et al. (BC641558)

______________________________________________________________________________

Defendants Starwood Retail Partners, LLC, Plaza West Covina, LP, and Starwood Retail Property Management, LLC’s MOTION FOR SUMMARY JUDGMENT

Responding Party: Plaintiff, David Lee

Tentative Ruling

Defendants Starwood Retail Partners, LLC, Plaza West Covina, LP, and Starwood Retail Property Management, LLC’s Motion for Summary Judgment is GRANTED.

 

Background

Plaintiff David Lee (“Plaintiff”) alleges that on or about October 3, 2015, he sustained injuries while riding a hoverboard. On December 5, 2016, Plaintiff filed a complaint, asserting causes of action against Defendants Kimberly Galicia dba SkygGlider (“Galicia”), Plaza West Covina, LP (“Plaza WC”) and Does 1-30 for:

  1. General Negligence

  2. Premises Liability

    On May 9, 2018, Plaintiff filed an Amendment to Complaint, wherein Starwood Retail Property Management, LLC (“Starwood Property”) was named in lieu of Doe 1. On May 16, 2018, Plaintiff filed another Amendment to Complaint, wherein Starwood Retail Partners, LLC (“Starwood Partners”) was named in lieu of Doe 2. On November 14, 2018, Plaintiff filed an Amendment to Complaint, wherein Professional Security Consultants (“PSC”) was named in lieu of Doe 3.

On August 16, 2019, this case was transferred from Department 5 (personal injury hub) to this instant department. On December 4, 2019, Plaza WC, Starwood Property and Starwood Partners filed a Second Amended Cross-Complaint (“SACC”), asserting causes of action against Galicia, PSC and Roes 1-10 for:

  1. Express Contractual Indemnity

  2. Equitable Indemnity

  3. Apportionment & Contribution

  4. Declaratory Relief

  5. Breach of Contract

  6. Failure to Defend

The Final Status Conference is set for September 21, 2020. Trial is set for September 29, 2020.

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 [emphasis theirs].)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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 of a defense thereto.” (CCP § 437(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.” (Id. at 467; CCP § 437c(c).)

Discussion

Starwood Partners, Starwood Property, and Plaza WC (“Starwood Defendants”) move the court for an order granting summary judgment against Lee and for a order entering judgment in favor of Starwood Defendants on Plaintiff’s complaint.

Evidentiary Objections

 

Starwood Defendants’ and Plaintiff’s evidentiary objections are OVERRULED.

 

Merits

On December 5, 2016, Plaintiff filed a complaint, asserting causes of action against Galicia, Plaza WC and Does 1-30 for (1) General Negligence and (2) Premises Liability. On May 9, 2018, Plaintiff filed an Amendment to Complaint, wherein Starwood Property was named in lieu of Doe 1. On May 16, 2018, Plaintiff filed another Amendment to Complaint, wherein Starwood Partners was named in lieu of Doe 2. On November 14, 2018, Plaintiff filed an Amendment to Complaint, wherein PSC was named in lieu of Doe 3. Plaintiff alleges that on or about October 3, 2015, at Plaza West Covina located at 112 Plaza Drive, West Covina, California 91790 (“Mall”), “Galicia, doing business as SkyGlider, Plaza [WC]. . . and each of them. . . negligently, and carelessly managed, maintained and/or operated their real property at the subject place so as to be the sole and proximate cause an incident [sic] giving rise to the action herein. On or about said date, Plaintiff was a customer at the property when Defendants. . . negligently and carelessly maintained their property which caused the said incident. (Complaint, GN-1). The complaint goes on to allege that Plaintiff “was offered to try a hoverboard with assistance of an employee, as Plaintiff tried to get off, he fell.” (Id.) Plaintiff alleges that as a result of his fall, Plaintiff sustained bodily injuries which required medical care. (Id.)

Starwood Defendants argue that the Primary Assumption of Risk Doctrine applies. However, the Court need not address this issue as Starwood Defendants have provided sufficient evidence that they did not have actual or constructive knowledge of any dangerous condition on the property.

Premises liability is a form of negligence. 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.) Those who own, possess, or control property generally have 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.) The existence and scope of duty are legal questions for the court. (Id. at 36.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for their use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.)

“Ordinarily the existence of a dangerous condition is a question of fact. [Citation.] However, … whether a condition is dangerous may ‘ “be resolved as a question of law if reasonable minds can come to but one conclusion.” ’ [Citations.]” (Davis v. City of Pasadena (1996) 42 Cal.App.4th 701, 704.) As illustrated in Davis, supra, steps and stairs are certainly not considered per se “dangerous conditions.” (Id. at pp. 704-05.) “[A] possibility of injury exists in almost all circumstances…,” and there must be something about their design or condition that poses some sort of heightened risk of injury. (Ibid.)

[Defendant] was negligent in the use or maintenance of the property if:

  1. A condition on the property created an unreasonable risk of harm;

  2. [Defendant] knew or, through the exercise of reasonable care, should have known about it; and

  3. [Defendant] failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition.

    (California Civil Jury Instructions (CACI) 1003.)

“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 v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.)

Starwood Defendants offer evidence that Plaza West Covina Mall (the “Mall”) is located at 112 Plaza Drive, West Covina, CA 91790. Defendant Plaza West Covina, LP owns the Mall. Defendant Starwood Retail Partners, LLC is an indirect parent of Plaza West Covina, LP. Defendant Starwood Retail Property Management, LLC is the Mall property manager. (Deposition of Allison Mack (“Mack Depo”), 10:18- 24, 12:8-17, 91:2-4; Peiris Decl., ¶ 6, Exh. E.) The Mall has approximately 175 stores. These stores include retail stores, like Macys and JC Penny's, as well as restaurants. In addition to storefronts, the Mall also contains kiosks in the common areas which sell goods or services. Mobile kiosks are referred to as retail merchandising units ("RMUs"). (Mack Depo, 13:24-25, 22:12-18.) Kiosk employees are prohibited from selling their goods beyond 2-feet away from the kiosk’s perimeter (“the 2-foot rule”). (Mack Depo, 68:15-18.) Generally, skateboarding, rollerblading, and other horseplay is not permitted in the common areas at the Mall, and Mall management employees regularly patrol the Mall to observe and reprimand horseplay and violations of the 2-foot rule. (Mack Depo, 33:13-24, 52:10-12, 53:8-19, 57:17-23, 68:7-18.) Plaza West Covina, LP retained Defendant Professional Security Consultants to provide security services to the Mall. Their duties include patrolling the common areas of the Mall and observing and reporting violations of the Code of Conduct and liability issues. (Declaration of Jose Quintero (“Quintero Decl.”), ¶¶ 4, 7; Mack Depo, 27:2-9, 84:25-85:17.) Plaza West Covina, LP leased a kiosk to Defendant Kimberly Galicia dba Sky Glider to sell hoverboards. As part of the agreement, Galicia was permitted to allow hoverboard skating on two 3-foot by 6-foot mats placed next to her kiosk. Hoverboard riding was not permitted outside of the carpeted area. (Mack Depo, 80:22-81:6, 83:15-19.) Galicia opened her kiosk at the Mall on October 3, 2015. The kiosk had been open for about seven hours prior to Plaintiff's incident. (Mack Depo, 73:22-25, 75:18-20, 76:1-25.) Professional Security Consultants’ employees responded to the incident and prepared an incident report. In the report, Plaintiff stated that “he was testing a skyglider from the Sky Glider kiosk” and fell. The report notes that there were “no liquids or any other obstacles on the floor” that were related to Plaintiff’s fall and that the lighting was natural, the location was clean, and the floor was dry. (Quintero Decl., ¶¶ 7, 12; Peiris Decl., Exh. G.) Galicia’s kiosk had been open for business for at most a total of about seven hours when Plaintiff’s fall occurred. The Mall's General Manager, Allison Mack, is not aware of any documentation indicating that SkyGlider violated the hoverboard skating restrictions in the license agreement at any point during those seven hours. Nor PSC is aware of any documentation indicating that SkyGlider had violated the Code of Conduct or violated hoverboard skating restrictions in the license agreement at any point during those seven hours. (Mack Depo, 27:2-9, 73:22-25, 75:18-23, 76:1-25, 95:15-24; Quintero Decl., ¶¶ 7, 10.)

Thus, Starwood Defendants have shown that they had no knowledge that SkyGlider had violated any of the restrictions in the lease agreement and had even hired a security company to patrol the common areas of the Mall and observe and report violations and liability issues.

In opposition, the only evidence Plaintiff offers as to Starwood Defendants knowledge of an alleged dangerous condition is testimony from PSC’s Director of Security, Mr. Quintero, stating that the Mall had issues with people riding hoverboards at the property in 2015. (Forstrom Decl., Exh. 2 (Deposition of Quintero), 127:1-12.) However, the testimony states that they were having issues with the public bringing in hoverboards and riding them throughout the Mall, which does not have relevance to the incident that occurred at the kiosk, i.e., violating the 2-foot rule at the kiosk, or even trying the hoverboard at the kiosk in general.

Accordingly, there are no disputed facts suggesting that Starwood Defendants had actual or constructive knowledge of any dangerous condition. The motion is GRANTED.

Case Number: BC641558    Hearing Date: January 15, 2020    Dept: J

HEARING DATE: Wednesday, January 15, 2020

NOTICE: OK

RE: Lee v. Galicia, et al. (BC641558)

______________________________________________________________________________

1. Cross-Defendant Professional Security Consultants’ MOTION FOR ORDER COMPELLING CROSS-COMPLAINANT STARWOOD RETAIL PARTNERS, LLC TO PROVIDE FURTHER RESPONSES TO FIRST SET OF REQUEST FOR ADMISSION NOS. 1-9 AND FORM INTERROGATORY NO. 17.1

Responding Party: Cross-Complainant, Starwood Retail Partners, LLC

2. Cross-Defendant Professional Security Consultants’ MOTION FOR ORDER COMPELLING CROSS-COMPLAINANT PLAZA WEST COVINA, LP TO PROVIDE FURTHER RESPONSES TO FIRST SET OF REQUEST FOR ADMISSION NOS. 1-9 AND FORM INTERROGATORY NO. 17.1

Responding Party: Cross-Complainant, Plaza West Covina, LP

3. Cross-Defendant Professional Security Consultants’ MOTION FOR ORDER COMPELLING CROSS-COMPLAINANT STARWOOD RETAIL PROPERTY MANAGEMENT, LLC TO PROVIDE FURTHER RESPONSES TO FIRST SET OF REQUEST FOR ADMISSION NOS. 1-9 AND FORM INTERROGATORY NO. 17.1

Responding Party: Cross-Complainant, Starwood Retail Property Management, LLC

4. Defendant Professional Security Consultants’ MOTION FOR SUMMARY JUDGMENT

Responding Party: Plaintiff, David Lee

Tentative Ruling

1. Cross-Defendant Professional Security Consultants’ Motion for Order Compelling Cross-Complainant Starwood Retail Partners, LLC to Provide Further Responses to First Set of Request for Admission Nos. 1-9 and Form Interrogatory No. 17.1 is MOOT in part (i.e., as to the Requests for Admissions) and GRANTED in part (i.e., as to Form Interrogatory No. 17.1). Starwood Partners is ordered to serve a further response to No. 17.1 within 20 days. Sanctions are awarded in the reduced amount of $460.00 against Starwood Partners and payable within 30 days.

2. Cross-Defendant Professional Security Consultants’ Motion for Order Compelling Cross-Complainant Plaza West Covina, LP to Provide Further Responses to First Set of Request for Admission Nos. 1-9 and Form Interrogatory No. 17.1 is MOOT in part (i.e., as to the Requests for Admissions) and GRANTED in part (i.e., as to Form Interrogatory No. 17.1). Plaza WC is ordered to serve a further response to No. 17.1 within 20 days. Sanctions are awarded in the reduced amount of $460.00 against Plaza WC and payable within 30 days.

3. Cross-Defendant Professional Security Consultants’ Motion for Order Compelling Cross-Complainant Starwood Retail Property Management, LLC to Provide Further Responses to First Set of Request for Admission Nos. 1-9 and Form Interrogatory No. 17.1 is MOOT in part (i.e., as to the Requests for Admissions) and GRANTED in part (i.e., as to Form Interrogatory No. 17.1). Starwood Property is ordered to serve a further response to No. 17.1 within 20 days. Sanctions are awarded in the reduced amount of $460.00 against Starwood Property and payable within 30 days.

4. Defendant Professional Security Consultants’ Motion for Summary Judgment is GRANTED.

 

Background

Plaintiff David Lee (“Plaintiff”) alleges that on or about October 3, 2015, he sustained injuries while riding a hoverboard. On December 5, 2016, Plaintiff filed a complaint, asserting causes of action against Defendants Kimberly Galicia dba Skyglider (“Galicia”), Plaza West Covina, LP (“Plaza WC”) and Does 1-30 for:

  1. General Negligence

  2. Premises Liability

    On May 9, 2018, Plaintiff filed an Amendment to Complaint, wherein Starwood Retail Property Management, LLC (“Starwood Property”) was named in lieu of Doe 1. On May 16, 2018, Plaintiff filed another Amendment to Complaint, wherein Starwood Retail Partners, LLC (“Starwood Partners”) was named in lieu of Doe 2. On November 14, 2018, Plaintiff filed an Amendment to Complaint, wherein Professional Security Consultants (“PSC”) was named in lieu of Doe 3.

On August 16, 2019, this case was transferred from Department 5 (personal injury hub) to this instant department. On December 4, 2019, Plaza WC, Starwood Property and Starwood Partners filed a Second Amended Cross-Complaint (“SACC”), asserting causes of action against Galicia, PSC and Roes 1-10 for:

  1. Express Contractual Indemnity

  2. Equitable Indemnity

  3. Apportionment & Contribution

  4. Declaratory Relief

  5. Breach of Contract

  6. Failure to Defend

The Final Status Conference is set for September 21, 2020. Trial is set for September 29, 2020.

1. Motion to Compel Furthers Re: RFAs /Form Interrogatory No. 17.1 as to Starwood Partners

Legal Standard

A party may move to compel further responses to interrogatories if the propounding party deems that (1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general. (CCP § 2030.300(a).)

A party may move to compel further responses to requests for admission if the propounding party deems that (1) an answer to a particular request is evasive or incomplete, or (2) an objection to a particular request is without merit or too general. (CCP § 2033.290(a).)

The moving party must demonstrate a “reasonable and good faith attempt” at an informal resolution of each issue presented. (CCP §§ 2016.040, 2030.300(b).)

Notice of the motion must be provided within 45 days of service of the verified response, or any supplemental verified response, or on or before any specific later date to which the parties have agreed in writing. (CCP § 2030.300(c).) The responding party has the burden of justifying the objections to the requests. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

Motions to compel further responses must always be accompanied by a separate statement containing the requests and the responses, verbatim, as well as reasons why a further response is warranted. (California Rules of Court [CRC] Rule 3.1345(a).) The separate statement must also be complete in itself; no extrinsic materials may be incorporated by reference. (CRC Rule 3.1345(c).)

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories or requests for admissions, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make it unjust to impose sanctions. (CCP §§ 2030.300(d), 2033.290(d).)

Discussion

PSC moves the court for an order compelling Starwood Partners to provide further responses to PSC’s Request for Admissions, Set No. One, Nos. 1-9 and the related Form Interrogatory No. 17.1. PSC also seeks sanctions in the amount of $650.00 against Starwood Partners and its attorney Ashan Peiris (“Peiris”).

On or about March 14, 2019, PSC served the subject discovery. (Sagheb Decl., ¶¶4, Exhs. C and D.) On or about April 16, 2019, Starwood Partners served its responses thereto. (Id., ¶¶6-7, Exhs. E and F.) On May 13, 2019, PSC’s attorney sent a meet and confer letter to Peiris. (Id., ¶5.) On June 7, 2019, Peiris responded to the May 13, 2019 meet and confer correspondence, advising therein that Starwood Partners “st[oo]d on [its] objections. (Id., ¶8. Exh. H.) Peiris further recommended that PSC withdraw, amend and re-serve the subject discovery to cure deficiencies and requested an extension of PSC’s June 7, 2019 deadline to produce further responses until June 28, 2019. (Id.) Peiris requested that PSC’s counsel advise no later than the close of business on June 14, 2019 whether or not she was amenable to this extension. (Id.) The motion was filed on July 15, 2019. Starwood Partners provided PSC with an extension of time until July 19, 2019 within which to file the instant motion. (See Sagheb Reply Decl., ¶3, Exh. A.)

The court determines that the motion is MOOT as it pertains to the Requests for Admissions, Set One. On or about August 9, 2019, Starwood Partners provided further responses to same. (See Peiris Decl., ¶10, Exh. B.) The court has discretion in deciding how to rule in light of the particular circumstances presented when a party serves supplemental responses after a motion to compel further responses has been filed. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 408)

A cursory review of the further responses reflects that Starwood Partners has now admitted No. 1 and that its responses to Nos. 2-9 (i.e., that “[d]espite reasonable inquiry in the matter in this request, the information known or readily obtainable is insufficient to enable Responding Party to admit or deny this matter”) comply with CCP § 2033.220(c) (i.e., “[i]f a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.”).

The motion, however, is GRANTED as it pertains to Form Interrogatory No. 17.1 (i.e., which reads: “Is your response to each request for admission served with these interrogatories an unqualified admission? If not, for each response that is not an unqualified admission: (a) state the number of the request; (b) state all facts upon which you base your response; (c) state the names, ADDRESSES, and telephone numbers of all PERSONS who have knowledge of those facts; and (d) identify all DOCUMENTS and other tangible things that support your response and state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing”). Starwood Partners has not provided a further response. Since Starwood Partners’ August 9, 2019 further responses to the Requests for Admissions contains only one unqualified admission, a further response to No. 17.1 is warranted. Starwood Partners is ordered to serve a further responses to No. 17.1 within 20 days.

Sanctions

PSC seeks sanctions in the amount of $650.00.

The court determines that the amount of sanctions requested are excessive. Sanctions are awarded in the reduced amount of $460.00 (i.e., 2 hours at $200.00/hour, plus $60.00 in filing fees), against Starwood Partners only. Sanctions are payable within 30 days.

2. Motion to Compel Furthers Re: RFAs/Form Interrogatory No. 17.1 as to Plaza WC

Legal Standard

See Motion #1.

Discussion

PSC moves the court for an order compelling Plaza WC to provide further responses to PSC’s Request for Admissions, Set No. One, Nos. 1-9 and the related Form Interrogatory No. 17.1. PSC also seeks sanctions in the amount of $650.00 against Plaza WC and its attorney Peiris.

See synopsis of Motion #1.

 

The motion is MOOT in part (i.e., as to the Requests for Admissions) and GRANTED in part (i.e., as to Form Interrogatory No. 17.1), for the reasons set forth above. Plaza WC is ordered to serve a further responses to No. 17.1 within 20 days.

Sanctions are awarded in the reduced amount of $460.00, against Plaza WC only. Sanctions are payable within 30 days.

3. Motion to Compel Furthers Re: RFAs/Form Interrogatory No. 17.1 as to Starwood Property

Legal Standard

See Motion #1.

Discussion

PSC moves the court for an order compelling Starwood Property to provide further responses to PSC’s Request for Admissions, Set No. One, Nos. 1-9 and the related Form Interrogatory No. 17.1. PSC also seeks sanctions in the amount of $650.00 against Starwood Property and its attorney Peiris.

See synopsis of Motion #1.

 

The motion is MOOT in part (i.e., as to the Requests for Admissions) and GRANTED in part (i.e., as to Form Interrogatory No. 17.1), for the reasons set forth above. Starwood Property is ordered to serve a further responses to No. 17.1 within 20 days.

Sanctions are awarded in the reduced amount of $460.00, against Starwood Property only. Sanctions are payable within 30 days.

4. Motion for Summary Judgment

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 [emphasis theirs].)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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 of a defense thereto.” (CCP § 437(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.” (Id. at 467; CCP § 437c(c).)

Discussion

PSC moves the court for an order granting summary judgment against Lee and for a order entering judgment in favor of PSC on Plaintiff’s complaint.

Procedural Issues

Exhibits A and B to the Declaration of Sohaila Sagheb filed August 15, 2019, Exhibits 1 and 2 to the Declaration of Eric Forstrom filed January 2, 2020 and Exhibits A, B and E to the Sagheb Declaration filed January 10, 2020 all reflect non-compliance with California Rules of Court (“CRC”) Rule 3.1116(c) (i.e., “[t]he relevant portion of any testimony in the deposition must be marked in a manner that calls attention to the testimony.”) The court admonishes counsel in this regard.

Request for Judicial Notice

PSC’s Request for Judicial Notice (“RJN”) is ruled on as follows: GRANTED as to Exhibit A (i.e., complaint filed December 5, 2016); GRANTED as to Exhibit B (i.e., Amendment to Complaint filed May 9, 2018 naming Starwood Property in lieu of Doe 1 and Amendment to Complaint filed May 16, 2018 naming Starwood Partners in lieu of Doe 2) and GRANTED as to Exhibit C (i.e., Amendment to Complaint filed November 14, 2018 naming PSC in lieu of Doe 3). The court also takes judicial notice of the fact that October 3, 2015 was a Saturday.

Evidentiary Objections

 

PSC’s evidentiary objections are ruled on as follows: SUSTAINED in their entirety.

 

Merits

On December 5, 2016, Plaintiff filed a complaint, asserting causes of action against Galicia, Plaza WC and Does 1-30 for (1) General Negligence and (2) Premises Liability. (RJN, Exh. A.) On May 9, 2018, Plaintiff filed an Amendment to Complaint, wherein Starwood Property was named in lieu of Doe 1. (Id., Exh. B.) On May 16, 2018, Plaintiff filed another Amendment to Complaint, wherein Starwood Partners was named in lieu of Doe 2. (Id.) On November 14, 2018, Plaintiff filed an Amendment to Complaint, wherein PSC was named in lieu of Doe 3. (Id., Exh. C.) Plaintiff alleges that on or about October 3, 2015, at Plaza West Covina located at 112 Plaza Drive, West Covina, California 91790 (“Mall”), “Galicia, doing business as SkyGlider, Plaza [WC]. . . and each of them. . . negligently, and carelessly managed, maintained and/or operated their real property at the subject place so as to be the sole and proximate cause an incident [sic] giving rise to the action herein. On or about said date, Plaintiff was a customer at the property when Defendants. . . negligently and carelessly maintained their property which caused the said incident. (Complaint, GN-1). The complaint goes on to allege that Plaintiff “was offered to try a hoverboard with assistance of an employee, as Plaintiff tried to get off, he fell.” (Id.) Plaintiff alleges that as a result of his fall, Plaintiff sustained bodily injuries which required medical care. (Id.)

At the outset, the court addresses PSC’s contention that it PSC entitled to summary judgment on the basis that Plaintiff’s causes of action against PSC are time-barred. CCP § 335.1 provides: “Within two years: An action for assault, battery, or injury to, or for the death of, an individual caused by the wrongful act or neglect of another.”

“The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. A recognized exception to the general rule is the substitution under section 474 of new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176 [citations omitted].)

CCP § 474 provides that “[w]hen the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint. . . and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly. . .” “If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Woo, supra, 75 Cal.App.4th at 176.)

“The phrase ‘ignorant of the name of a defendant’ has not been interpreted literally. A plaintiff is ‘ignorant of the name’ if he knows the identity of the person but is ignorant of the facts giving him a cause of action against such person.” (Wallis v. Southern Pac. Transportation Co. (1976) 61 Cal.App.3d 782, 786.)

For purposes of summary judgment, the defendant has the initial burden of presenting evidence affirmatively showing that no reasonable jury could find that the plaintiff was ignorant of its cause of action against the defendant. (See Fara Estates Homeowners Ass’n. v. Fara Estates, Ltd. (9th Cir. 1998) 134 F.3d 377, at *6 [applying Calif. Law].)

Again, the incident occurred on October 3, 2015. The complaint was filed December 5, 2016. PSC became a defendant via an Amendment to Complaint filed November 14, 2018. In its moving papers, PSC claims that “Plaintiff was not ignorant of the facts that he now alleges gives rise to liability as against PSC. Plaintiff knew there was a no skating rule at the Mall. Plaintiff knew that he was not allowed to skate in the mall and he further knew or should have known that the no-skating rule was enforced partly by security. As such, Plaintiff knew all the facts on which his claim of negligence against PSC is now based.” (Motion, 17:20-24.) PSC’s statement, however, is unsupported. PSC has not provided any evidence that Plaintiff actually knew of the basis for PSC’s alleged negligence at the time of the original filing.

The court finds that PSC has not met its initial burden in this regard. PSC’s request for summary judgment on this basis is denied.

PSC has submitted, in part, the following evidence: On October 3, 2015, Plaintiff and his family arrived at the Mall at approximately 5 pm for the purposes of shopping and dining. (Sagheb Decl., Exh. A, 27:12-28:6.) On that occasion, Plaintiff and his wife and daughter had started together at JCPenney but their daughter separated from them. (Id., 41:20-42:45.) as Plaintiff and his wife concluded shopping at JCPenney and were walking towards Macy’s, Plaintiff saw his daughter at the Skyglider kiosk. (Id., 41:20-42:25.) Plaintiff asked his daughter what she was doing and his daughter said she had tried the Skyglider and thought it was fun. (Id., 31:20-32:10.) Plaintiff decided to try it himself. (Id.) Once Plaintiff got on board, Galicia held his hand for about 20 seconds. (Id., 31:20-32:10.) Plaintiff testified that when he wanted to get off the board Galicia told him to just “hop off.” (Id., 32:25-38:7.) When Plaintiff tried to do so, he fell backwards and the board went forward. (Id., 32:35-38:7.) After Plaintiff fell Galicia asked Plaintiff is he was okay and he said no. (Id., 66:9-12.) Galicia then asked if Lee wanted security called and Lee said he did. (Id., 66:16-67:5).

Galicia opened the Skyglider Retail Merchandising Unit (“RMU”) at the Mall on October 3, 2015, the date of the incident. (Sagheb Decl., ¶4, Exh. C., 27:2-9, 73:22-25, 75:18-20). SkyGlider had been open for business for a total of about 7 hours when the incident occurred. (Id., ¶4, Exh. C., 27:2-9, 73:22-25, 75:18-23, 76:1-25; RJN, ¶4; Quintero Decl., ¶12, Exh. B).

PSC contracts with the Mall to perform patrol, observation, and other security services. (Quintero Decl., ¶2, Exh. A.) In October 2015 there were approximately 175 stores and dozens of kiosks and RMUs at the mall. (Id., ¶3.) Generally, per shift in October 2015, PSC had 5-6 guards patrolling the Mall. (Id..) Part of the duties and responsibilities of the patrol guards is to ensure compliance with the Code of Conduct Rules that the Mall posts at the entrances of the Mall as well as in various common areas. (Quintero Decl., ¶4.) The Code of Conduct prohibits skating or any form on Mall premises. (Id.) Quintero, PSC’s Directory of Security on the date of the incident, was advised by Mall management that an RMU had been leased to Skylglider which would be selling hoverboards and that Skyglider and Galicia were permitted by license and per the terms of its lease with the Mall to demonstrate and permit customers to try hoverboards on a carpeted area on both sides of the RMU measuring approximately 3’ x 6’. (Id.) PSC did not receive any additional instructions regarding SkyGlider and was not asked to render any additional services at the SkyGlider RMU. (Id., ¶5.) PSC was not consulted regarding the terms and confitions of the Mall’s license or lease with SkyGlider and Galicia. (Id., ¶6.) PSC was not asked to post additional detail at the SkyGlider RMU or to take any special precautions with respect to SkyGlider’s business activities. (Id., ¶5.)

PSC’s file pertaining to SkyGlider does not contain any documents suggesting that PSC ever made a report to Mall management that SkyGlider was allowing its hoverboards to be operated outside the carpeted area. (Id., ¶10.) There are also no documents reflecting that the Specialty Leasing Staff, Laura Seanez, or the Mall’s General Manager, Allison Marck, had complained of SkyGlider’s failure to comport with the restrictions on the area in which the hover boards could be demonstrated and tried by customers. (Id.) SkyGlider was never made aware of any infraction by Skyglider of its License Agreement with the Mall before Plaintiff’s fall. (Id.)

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) “The threshold element of a cause of action for negligence is the existence of a duty to use due care. . . [w]hether this essential prerequisite to a negligent cause of action has been satisfied in a particular case is a question of law to be resolved by the court.” (Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 397.) “[T]he duty to take particular security measures is determined by ‘a balancing of “foreseeability” of the [wrongful] acts against the “burdensomeness, vagueness, and efficacy” of the proposed security measures.” (Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1119.)

Plaintiff asserts that “PSC is tasked, among other things, with inspecting, maintaining, authorizing, managing and operating the premises for potential liability issues or potential liability concerns both related to merchants not complying with premise requirements or patrons not abiding to premise rules. Further, PSC failed to observe and/or report and/or prohibit. . . Galicia. . . from violating the terms of her rental agreement with Plaza [WC]. . . and failed to uphold the terms of the “Mind Your Manners” and “Code of Conduct” rules and regulations for Plaza [WC]. . .” (Sagheb Decl., ¶8, Exh. G, 4:6-13.) Plaintiff does not assert that PSC had a duty to post specific detail at SkyGlider, that Skyglider had any customers who had mounted or rode the however board other than Plaintiff and his daughter in the 7 hours SkyGlider had been in business at the Mall, that PSC had an opportunity to observe SkyGlider’s willingness to permit customers to ride the hover board off the carpeted area designated for their use, that SkyGlider had permitted customers other than Plaintiff and his daughter to ride the hover board off the carpeted area designated for their use, or that PSC had observed or had report of customers riding the hover board off the carpeted area designated for their use.

Here, it is unclear what additional security measure Plaintiff contends PSC had a duty to undertake or why undertaking those measures would have prevented Plaintiff’s fall off the hover board. Although Plaintiff appears to be suggesting “clos[er] monitoring,” there are no facts to suggest that is the case. Plaintiff also does not discuss the impact on the safety of the remaining 174 tenants, vendors and customers if PSC devoted more resources to the SkyGlider RMU. Plaintiffs’ suggestion that PSC should have “posted warning signs advising mall patrons if hover board activity” would not have avoided Plaintiff’s fall.

Additionally, “[b]ecause the owner if 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 v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.)

Here, there are no disputed facts suggesting that PSC had actual or constructive knowledge of any dangerous condition. The motion, then, is GRANTED.

Case Number: BC641558    Hearing Date: December 12, 2019    Dept: J

HEARING DATE: Thursday, December 12, 2019

NOTICE: OK

RE: Lee v. Galicia, et al. (BC641558)

______________________________________________________________________________

Defendants Plaza West Covina, LP’s, Starwood Retail Partners, LLC’s and Starwood Retail Property Management, LLC’s MOTION FOR LEAVE TO AMEND CROSS-COMPLAINT

Responding Party: None (unopposed, as of 12/3/19, 3:37 p.m.; due 11/27/19)

Tentative Ruling

Defendants Plaza West Covina, LP’s, Starwood Retail Partners, LLC’s and Starwood Retail Property Management, LLC’s unopposed Motion for Leave to Amend Cross-Complaint is GRANTED.

 

Background

Plaintiff David Lee (“Plaintiff”) alleges that on or about October 3, 2015, he sustained injuries while riding a hoverboard. On December 5, 2016, Plaintiff filed a complaint, asserting causes of action against Defendants Kimberly Galicia dba Skyglider (“Galicia”), Plaza West Covina, LP (“Plaza WC”) and Does 1-30 for:

  1. General Negligence

  2. Premises Liability

    On May 9, 2018, Plaintiff filed an Amendment to Complaint, wherein Starwood Retail Property Management, LLC (“Starwood Property”) was named in lieu of Doe 1. On May 16, 2018, Plaintiff filed another Amendment to Complaint, wherein Starwood Retail Partners, LLC (“Starwood Partners”) was named in lieu of Doe 2. On November 14, 2018, Plaintiff filed an Amendment to Complaint, wherein Professional Security Consultants (“PSC”) was named in lieu of Doe 3.

    On January 4, 2019, Plaza WC, Starwood Property and Starwood Partners filed a First Amended Cross-Complaint (“FACC”), asserting causes of action against Galicia, PSC and Roes 1-20 for:

  1. Express Contractual Indemnity

  2. Equitable Indemnity

  3. Apportionment & Contribution

  4. Declaratory Relief

  5. Breach of Contract

    On February 22, 2019, Plaza WC, Starwood Property and Starwood Partners dismissed the fifth cause of action in the FACC against PSC, without prejudice.

    On August 16, 2019, this case was transferred from Department 5 (personal injury hub) to this instant department.

Legal Standard

“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading…” (CCP § 473(a)(1); and see § 576 [“Any judge, at any time before or after commencement or trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order”].)

“[T]he trial court has wide discretion in allowing the amendment of any pleading. . . the ruling of the trial court in such matters will be upheld unless a manifest or gross abuse of discretion is shown.” (Bedolla v. Logan & Frazer (1975) 52 Cal.App.3d 118, 135 [citations omitted].) “[I]t is irrelevant that new legal theories are introduced as long as the proposed amendments relate to the same general set of facts.” (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048 [quotations and citations omitted].)

“Courts must apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, when no prejudice is shown to the adverse party. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) However, “even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial. . . denial may rest upon the lack of diligence in offering the amendment after knowledge of the facts, or the effect of the delay on the adverse party.” (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 940.)

Also, “[a] motion to amend a pleading before trial must: (1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments; (2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph and line number, the deleted allegations are located; and (3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.” (California Rules of Court (“CRC”) Rule 3.1324(a).)

Additionally, “[a] separate declaration must accompany the motion and must specify: (1) The effect of the amendment; (2) Why the amendment is necessary and proper; (3) When the facts giving rise to the amended allegations were discovered; and (4) The reasons why the request for amendment was not made earlier.” (CRC Rule 3.1324(b).)

Discussion

Plaza WC, Starwood Property and Starwood Partners (collectively, “Starwood Defendants”) move the court for an order permitting them to file their proposed Second Amended Cross-Complaint to include a cause of action for failure of the duty to defend against PSC and to re-assert their breach of contract cause of action against PSC.

The court determines that the Starwood Defendants have adequately complied with CRC Rule 3.1324. Counsel for the Starwood Defendants explains that the Starwood Defendants tendered the defense of this case to PSC and their insurer on December 6, 2018. (Peiris Decl., ¶4.) On January 4, 2019, the Starwood Defendants filed their FACC naming PSC as a cross-defendant to all causes of action. (Id.) On February 15, 2019, the Starwood Defendants again tendered the defense of this case to PSC and their insurer. (Id.) On February 22, 2019, the Starwood Defendants inadvertently dismissed PSC as a cross-defendant to the breach of contract cause of action (Id.) This dismissal was made without prejudice. To date, the Starwood Defendants have not received a response to their tender offers. (Id.)

The motion is unopposed; as such, no prejudice has been shown. The motion is GRANTED.

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