ALI SIAMELDIN VS NAZKOR, LLC ET AL

Tentative Rulings

Case Number: BC671629    Hearing Date: September 09, 2020    Dept: 29

Siameldin v. Nazkor, LLC et al. consolidated with Siameldin v. Southwest Traffic et al.

The Motion for Summary Judgment, or in the Alternative, Summary Adjudication, filed by Defendants Southwest Traffic Corp., Alrick Cooper and Cesar Aguero is DENIED. (Code Civil Procedure § 437c).

The Motion for Summary Judgment filed by Defendant Nazkor, LLC dba Hyde Sunset Kitchen and Cocktails (also sued as Club Hyde and the Hyde Club) is DENIED. (Code Civil Procedure § 437c).

In these consolidated actions, Plaintiff alleges that he was attacked and falsely arrested by Defendants Cesar Aguero and Alrick Cooper while they were working as security guards at a nightclub operated by Defendant Nazkor LLC, dba Hyde Sunset Kitchen and Cocktails (also sued as Club Hyde and the Hyde Club) (Nazkor and Hyde entities are collectively referred to as Nazkor or Nazkor Defendants). Aguero and Cooper were employees of Defendant Southwest Traffic Corp. (erroneously sued as South West Traffic), which supplied the guards to Nazkor.

In Case No. BC671629, Plaintiff asserts claims for false arrest, battery and negligence against the Nazkor Defendants, Aguero and Cooper. In Case No. BC703940, Plaintiff asserts the same claims against Defendant Southwest Traffic, Aguero and Cooper. All defendants move for summary judgment.

MOTION OF DEFENDANT SOUTHWEST TRAFFIC, CESAR AGUERO AND ALRICK COOPER

The Southwest Traffic Defendants argue that the undisputed evidence establishes that Aguero and Cooper acted reasonably on the night in question and did not falsely arrest or batter Plaintiff.

I. EVIDENCE

A. DEFENDANTS’ EVIDENCE

1. Declaration of Cesar Aguero

Aguero is a licensed security guard. On the night in question he was working as a security guard at the Hyde Sunset Kitchen and Cocktails (“Hyde”). One of his duties was to ensure that no one entered the nightclub through the rear exit. On the night in question, he noticed a male entering through the back entrance. He later learned that the man was Plaintiff. He advised Plaintiff he was trespassing and that the had to leave. He then escorted Plaintiff out of the nightclub. He never touched Plaintiff while escorting him out.

At the rear exit, Aguero asked other security guards to escort Plaintiff off the premises. Plaintiff then stopped and spit in Aguero’s face, which another security guard, Arlick Cooper witnessed. Cooper immediately detained Plaintiff and placed him in handcuffs. Aguero went back into the nightclub and did not exit until the police officers arrived.

Once the officers arrived, he informed the officers that he wanted to place Plaintiff under private person’s arrest for spitting on him. He signed a private person’s arrest statement form stating that he was placing Plaintiff under arrest for battery. The officer took custody of Plaintiff and took him to jail.

2. Declaration of Arlick Cooper

Cooper is also a licensed security guard who was working at Hyde on the night in question. He witnessed Plaintiff spitting on Aguero and detained Plaintiff by placing him in handcuffs and physically escorting him to the parking lot area while waiting for the police. Plaintiff was intoxicated and physically and verbally aggressive.

While escorting him to the parking lot area, Plaintiff tried to head butt Cooper and break away from him. Cooper let go of him and Plaintiff ran away, still wearing handcuffs. He tripped and fell face forward, landing on his face. Cooper grabbed Plaintiff and held him on the ground where he fell. Because of Plaintiff’s aggressive and resistive behavior, he held Plaintiff on the ground until the police arrived.

The police arrived about five minutes later, along with paramedics. Plaintiff declined medical attention. Cooper contends he used a reasonable force in detaining Plaintiff.

3. Declaration of Robert Gardner

Gardner is a forensic security consultant offered as an expert witness. Gardner reviewed various discovery documents and other materials, and opines that Defendants lawfully detained the Plaintiff; that Aguero performed a lawful private person’s arrest; and that Defendants used a reasonable amount of force to detain Plaintiff and acted within the standard of care.

Gardner attaches a Los Angeles Police Department crime and arrest report which he states he relied on in forming his opinions. The number of the report is not consistently stated; the first page identifies the number as 170611179 and the second page identifies the number as 170611176.

4. Declaration of Lyle Trainer

Trainer is counsel for defendants. He attaches special interrogatories asking Plaintiff to state all facts to support his contention that Defendants falsely arrested, battered and acted negligently toward defendant. The responses refer to a Los Angeles Police Department report number 17-0612621. (The Court notes that this is a different number than the police report attached to Gardner’s declaration.)

B. PLAINTIFF’S EVIDENCE

1. Declaration of Plaintiff Ali Siameldin

On the evening in question, Plaintiff and his friend went into Hyde after paying a cover charge to enter. Inside the club, he heard Aguero calling his name. He knew Aguero because both Plaintiff and Aguero had worked for a business owned and operated by Plaintiff’s family and Aguero had been fired. At the Hyde on the night in question, Aguero was rude and confrontational to Plaintiff, insulting him and calling him ethnic slurs.

Plaintiff attempted to turn away, but Aguero grabbed Plaintiff and hit him. Aguero marched him out of the club, called someone on the radio and Defendant Arlick Cooper appeared, wearing a uniform and carrying a badge, handcuffs and a gun. Cooper handcuffed Plaintiff and dragged him down the street for about 70 feet. He then violently hit Plaintiff, throwing him to the sidewalk and breaking his nose, teeth and eye socket.

Plaintiff never spit on Aguero or anyone else that night. He was not verbally or physically aggressive and was not intoxicated. He did not enter through the rear door; he entered through the front after paying the cover charge. He never tried to head butt anyone. He did not try to run down the street while handcuffed and did not fall onto the pavement.

Plaintiff attaches Los Angeles County Police Department Investigative Report No. 17-0612621. (The Court notes that this report is the one that is referenced in Plaintiff’s interrogatory responses and that is different from the one relied upon by Gardner).

Plaintiff also attaches his responses to interrogatories served by Defendant Nazor that set forth a consistent story to the one outlined above and photographs of his injuries.

C. RULINGS ON OBJECTIONS

-- Defendant’s objections to Plaintiff’s evidence

1. Overruled to the extent it is offered as evidence as to Plaintiff’s state of mind.

2. Overruled as to the first clause. Remainder is not material to the Court’s ruling and the Court declines to rule on the objection.

3. Overruled to the extent the police report is offered to counter Defendants’ suggestion that the police report referred to in Plaintiff’s interrogatory responses is the police report attached to Gardner’s declaration. The Court does not rely on the police report for any other purpose.

4. Overruled to the extent that Defendants contend that Plaintiff’s position in this motion is inconsistent with the discovery responses provided in this case. The Court does not rely on the interrogatory responses for any other purpose.

5. Not material to the Court’s ruling; the Court declines to rule on the objection.

6. The objections to Plaintiff’s responses to Defendants’ separate statement are not evidentiary objections and the Court declines to rule on them.

II. DISCUSSION

The Southwest Traffic Defendants’ motion is based on a version of the facts that is hotly contested by Plaintiff. As set forth in Plaintiff’s declaration, virtually every fact that the Southwest Traffic Defendants rely on is contested. In ruling on the summary judgment motion, the Court must view the evidence in the light most favorable to the non-moving party.

Defendants contend that the undisputed facts establish that the claim for false arrest is without merit because Defendants lawfully arrested Plaintiff for public offenses committed in the security guards’ presence, specifically spitting on Aguero. Plaintiff disputes that he spit on Aguero. If the Court accepts Plaintiff’s version of the facts, as the Court must for purposes of this motion, Defendants had no probable cause for the arrest. Defendants have not shown entitlement to summary adjudication on the false arrest claim.

Defendants further contend that they are entitled to judgment in their favor on the battery claim because the security guards had the right to use a reasonable amount of force to effectuate a lawful arrest and that the guards did so here. Again, viewing the evidence in the light most favorable to the Plaintiff, this argument fails. A reasonable jury could conclude that Aguero engaged in an unprovoked attack on Plaintiff and Cooper effectuated an unlawful arrest, using excessive force.

Defendants also contend that they are entitled to judgment on the negligence claim because under their version of the facts, Defendants acted reasonably. But Plaintiff’s version of the facts is directly contrary to Defendants. There is a triable issue of fact as to whether Defendants acted reasonably.

Defendants contend that they met their initial burden based on Plaintiff’s factually devoid discovery responses. Plaintiff’s discovery responses incorporated by reference Police Report No. 17-0612621, which was not included in the evidence submitted with Defendants’ papers. The police report is attached to Plaintiff’s declaration and includes a summary of Plaintiff’s statement to the police which is consistent with the account in his declaration. In sum, there are no factually devoid discovery responses that would satisfy Defendants’ initial burden. Even if there were, Plaintiff’s declaration is sufficient to raise a triable issue of fact as to the facts material to this motion.

In sum, the motion for summary judgment by Defendants Southwest Traffic Corp., Cesar Aguero and Alrick Cooper must be denied.

MOTION FOR SUMMARY JUDGMENT BY NAZKOR, LLC dba HYDE SUNSET KITCHEN AND COCKTAILS (also sued as CLUB HYDE and THE HYDE CLUB)

The Nazkor Defendants argue that they are entitled to summary judgment because Aguero and Cooper were not their employees.

I. EVIDENCE

A. Nazkor’s Evidence

In support of the motion, Nazkor presents declarations of Justin Walsh and Dwayne George. Walsh is the Director of Operations for the parent company of Nazkor LLC dba Hyde Sunset Kitchen and Cocktails and is familiar with the individuals employed by Nazkor in April 2017. George in the head of security at Nazkor. Both declare that neither Cesar Aguero nor Arlick Cooper was an employee of Nazkor in April 2017.

B. Plaintiff’s Evidence

In opposition, Plaintiff relies on his own declaration that is identical to the one submitted in opposition to the Southwest Traffic Defendants’ motion and that is summarized above.

C. Rulings on Objections

-- Nazkor’s objections to Plaintiff’s evidence

1. Overruled.

2. Overruled.

3 – 4. Not material to the Court’s ruling on Nazkor’s motion; the Court declines to rule on this objection.

5. Overruled.

6. Overruled.

7. Sustained.

II. DISCUSSION

Nazkor argues that it cannot be vicariously liable for the actions of the security guards because they were not employees of Nazkor on the night in question.

In ruling on a motion for summary judgment, the court must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

Here, the complaint alleges, in relevant part, that Aguero and Cooper were “security guards or bouncers employed by” the Nazkor business entities (Complaint, ¶ 3); that the Nazkor entities “either employed directly or retained as independent contractors security personnel” including Aguero and Cooper (¶ 7); that “each Defendant was the agent of remaining Defendants” (¶ 8) and that Nazkor is vicariously liable for the security guards’ actions.

“Under the doctrine of respondeat superior, the innocent principal or employer is liable for the torts of the agent or employee, committed within the scope of employment” or agency. (Witkin Summary of California Law, Eleventh Ed., Ch. IV, § 175). “[R]espondeat superior . . . is not limited to employer and employee but speaks more broadly of agent and principal; it makes the principal liable for negligent and “wrongful” acts committed by the agent “in and as part of the transaction of such [agency] business.” (Lisa M. v. Henry Mayo Newhall Memorial Hospital (1995) 12 Cal. 4th 291, n. 2.) An independent contractor may be an agent if the contractor is subject to the principal’s direction and control. (See, e.g., Jackson v. AEG Live, LLC (2015) 233 Cal. App. 4th 1156, 1184.) Whether a contractor is an agent of the principal is generally a question of fact.

Here, the complaint plainly alleges, that Nazkor is vicariously liable for the security guards’ actions either because they are employees or agents. While Nazkor’s evidence is sufficient to meet its initial burden as the moving party as to whether the guards were Nazkor’s employees, the motion is entirely silent as to whether the guards were acting as Nazkor’s agents at the time of the alleged incident. Nazkor presents no evidence as to whether the guards were subject to Nazkor’s direction or control or regarding any other factors that are relevant to the agency determination.

As previously noted, the first step in the summary judgment analysis is to determine the issues as framed by the pleadings. The complaint alleges, in the alternative, that Nazkor is vicariously liable because Aguero and Cooper were its agents. As the moving party, Nazkor bears the initial burden of making a prima facie showing that it is entitled to judgment in its favor on the claims as alleged int he complaint. Because Nazkor has not addressed whether the security guards were acting as Nazkor’s agents on the night in question, Nazkor has not met its initial burden and the burden does not shift to the Plaintiff to raise a triable issue of fact on that question.

“A defendant moving for summary judgment has the burden of establishing that the plaintiff's action has no merit. He must make a factual showing negating the existence of a cause of action on all theories embodied in the complaint. If he fails in that burden, summary judgment must be denied despite any deficiency in the plaintiff's responding declarations.” (Kelleher v. Empresa Hondurena de Vapores, S.A. (1976) 57 Cal. App. 3d 52, 58.) Unless and until a defendant meets its initial burden, the plaintiff has no burden to present controverting evidence. (See Consumer Cause, Inc. v. SmileCare (2001) 91 Cal. App. 4th 454, 468 (“There is no obligation on the opposing party . . . to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element . . . necessary to sustain a judgment in his favor”).)

The Court thus denies the motion for summary judgment.

Moving parties are ordered to give notice.