This case was last updated from Los Angeles County Superior Courts on 11/10/2021 at 23:26:05 (UTC).

ANDREA EVA MAGYAR , ET AL. VS KAISER PERMANENTE MEDICAL CENTER , ET AL.

Case Summary

On 09/16/2019 ANDREA EVA MAGYAR filed a Personal Injury - Other Personal Injury lawsuit against KAISER PERMANENTE MEDICAL CENTER . This case was filed in Los Angeles County Superior Courts, Spring Street Courthouse located in Los Angeles, California. The Judges overseeing this case are THOMAS D. LONG, AUDRA MORI and CHARLES C. LEE. The case status is Pending - Other Pending.

Case Details Parties Dockets

 

Case Details

  • Case Number:

    *******2822

  • Filing Date:

    09/16/2019

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

THOMAS D. LONG

AUDRA MORI

CHARLES C. LEE

 

Party Details

Plaintiffs and Appellants

MAGYAR ANDREA EVA AN INDIVIDUAL

VLASZOFF SANDOR AN INDIVIDUAL

Respondents and Defendants

MODERN PARKING INC.

KAISER PERMANENTE MEDICAL CENTER

KAISER PERMANENTE INTERNATIONAL

Attorney/Law Firm Details

Plaintiff Attorney

SZABO GABOR

Defendant Attorneys

WAYNE ERIC JEFFREY

ZITSOW ARTHUR E.

BAGNASCHI CHRISTOPHER

CONDON BRIAN

Court Documents

Court documents are not available for this case.

 

Docket Entries

  • 01/10/2023
  • Hearing01/10/2023 at 1:30 PM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion to Tax Costs

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  • 09/12/2022
  • Hearing09/12/2022 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal

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  • 10/18/2021
  • Docketat 1:30 PM in Department 31, Audra Mori, Presiding; Hearing on Motion to Tax Costs - Held - Motion Denied

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  • 10/18/2021
  • DocketDeclaration (of Gabor Szabo in support of notice of motion to strike costs); Filed by Andrea Eva, Magyar , an individual (Plaintiff); Sandor, Vlaszoff, an individual (Plaintiff)

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  • 10/18/2021
  • DocketMinute Order ( (Hearing on Motion to Tax Costs)); Filed by Clerk

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  • 10/18/2021
  • DocketMotion to Strike (not initial pleading) (COSTS OR, IN THE ALTERNATE, TAX COSTS;); Filed by Andrea Eva, Magyar , an individual (Plaintiff); Sandor, Vlaszoff, an individual (Plaintiff)

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  • 10/12/2021
  • DocketAppeal - Ntc Designating Record of Appeal APP-003/010/103; Filed by Modern Parking, Inc. (Respondent)

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  • 10/07/2021
  • Docketat 08:30 AM in Department 31, Audra Mori, Presiding; Jury Trial - Not Held - Advanced and Vacated

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  • 10/05/2021
  • DocketOpposition (to Plaintiff's Motion to Strike Costs); Filed by Modern Parking, Inc. (Respondent)

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  • 10/04/2021
  • DocketNotice (of Entry of Judgment); Filed by Modern Parking, Inc. (Defendant)

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97 More Docket Entries
  • 06/22/2020
  • DocketMemorandum of Points & Authorities; Filed by Kaiser Foundation Health Plan, Inc. Erroneously Sued As Kaiser Permanente Medical Center (Defendant)

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  • 01/27/2020
  • DocketAnswer; Filed by Kaiser Foundation Health Plan, Inc. Erroneously Sued As Kaiser Permanente Medical Center (Defendant)

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  • 11/27/2019
  • DocketAnswer; Filed by Modern Parking, Inc. (Defendant)

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  • 11/13/2019
  • DocketAmendment to Complaint (Fictitious/Incorrect Name); Filed by Andrea Eva, Magyar , an individual (Plaintiff)

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  • 10/23/2019
  • DocketPI General Order; Filed by Clerk

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  • 10/23/2019
  • DocketCertificate of Mailing for ([PI General Order], Standing Order re PI Procedures and Hearing Dates); Filed by Clerk

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  • 09/18/2019
  • DocketCivil Case Cover Sheet; Filed by Andrea Eva, Magyar , an individual (Plaintiff)

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  • 09/16/2019
  • DocketComplaint; Filed by Andrea Eva, Magyar , an individual (Plaintiff); Sandor, Vlaszoff, an individual (Plaintiff)

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  • 09/16/2019
  • DocketSummons (on Complaint); Filed by Andrea Eva, Magyar , an individual (Plaintiff); Sandor, Vlaszoff, an individual (Plaintiff)

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  • 09/16/2019
  • DocketNotice of Case Assignment - Unlimited Civil Case; Filed by Clerk

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Tentative Rulings

b'

Case Number: 19STCV32822 Hearing Date: October 18, 2021 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ANDREA EVA MAGYAR, ET AL.,

Plaintiff(s),

vs.

KAISER PERMANENTE MEDICAL CENTER, ET AL.,

Defendant(s).

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CASE NO: 19STCV32822

[TENTATIVE] ORDER DENYING MOTION TO STRIKE COSTS

Dept. 31

1:30 p.m.

October 18, 2021

Plaintiffs Andrea Eva Magyar (“Magyar”) and Sandor Vlaszof (“Vlaszof”) (collectively, “Plaintiffs”) filed this action against Defendants Kaiser Permanente Medical Center (“Kaiser”) and Modern Parking, Inc. (“Modern”) (collectively, “Defendants”) for negligence and premises liability. Plaintiffs alleged that on September 21, 2017, Magyar parked at the rooftop level of Kaiser’s parking structure, which was in the possession and control of Modern, and that as Magyar proceeded to take the stairs down, she slipped and fell down the wet stairs. The complaint includes a claim for loss of consortium by Vlaszof.

On August 24, 2021, the court heard Kaiser’s motion for summary judgment and Modern’s joinder to motion for summary judgment and took the matter under submission. Thereafter, on August 25, 2021, the court granted the motion for summary judgment and the joinder to the motion. (Min. Order, Aug. 25, 2021.)

Judgment was entered in favor of Kaiser on September 15, 2021, and Kaiser filed and served Notice of Entry of Judgment on September 16, 2021. Judgment was entered in favor of Modern on September 21, 2021, and Modern then filed and served Notice of Entry of Judgment on October 4, 2021.

On August 27, 2021, Modern filed its Memorandum of Costs seeking $2,022.24 in total costs.

On September 13, 2021, Plaintiffs filed the instant motion to strike costs. Modern filed an untimely opposition on October 5, 2021. As of October 12, 2021, no reply has been filed. In the absence of any prejudice to Plaintiffs, the court exercises its discretion to consider the late opposition.

Plaintiffs move to strike Modern’s memorandum of costs on the grounds it is premature because as of Plaintiffs filing the instant motion on September 10, 2021, no judgment had been entered. Plaintiffs further assert that even if the court were to consider Modern’s premature memorandum of costs, the ruling on who is the prevailing party should be stayed until a final decision is ordered by the Court of Appeal.

In opposition, Modern contends its premature memorandum of costs is a procedural irregularity and should be treated as timely.

Plaintiff’s argument the memorandum of costs should be stricken because it was served and filed before entry of judgment is not persuasive. “[T]ime limitations pertaining to a memorandum of costs are not jurisdictional [Citation], and the premature filing of a memorandum of costs is treated as ‘a mere irregularity at best’ that does not constitute reversible error absent a showing of prejudice. [Citations.] Rather, courts treat prematurely filed cost bills as being timely filed.” (Haley v. Casa Del Rey Homeowners Assn. (2007) 153 Cal.App.4th 863, 880.) Plaintiffs do not argue nor show any prejudice from Modern’s prematurely filed memorandum of costs.

Moreover, as to Plaintiffs’ argument Modern’s memorandum of costs should not be considered until after the Court of Appeal issues a final decision, this court notes that upon filing of an appeal, it retains jurisdiction to rule on matters collateral to the judgment. (CCP § 916(a).) A motion to tax costs is a collateral matter. (Hennessy v. Superior Court (1924) 194 Cal. 368, 372; Bankes v. Lucas (1992) 9 Cal.App.4th 365, 369.) Accordingly, the Notice of Appeal does not divest the court of jurisdiction to decide the motion to strike costs. However, Plaintiff does not challenge the reasonableness or necessity of any of the items specified in Modern’s memorandum of costs. If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. (Ladas v. California State Automotive Assoc. (1993) 19 Cal.App.4th 761, 773-774.)

Based on the foregoing, Plaintiffs’ motion to strike costs is denied.

Plaintiffs are ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 18th day of October, 2021

Hon. Audra Mori

Judge of the Superior Court

'b'

Case Number: 19STCV32822 Hearing Date: September 21, 2021 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ANDREA EVA MAGYAR, ET AL.,

Plaintiff(s),

vs.

KAISER PERMANENTE MEDICAL

CENTER, ET AL.,

Defendant(s).

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CASE NO: 19STCV32822

[TENTATIVE] ORDER FINDING MOTION TO DEEM ADMITTED MOOT

Dept. 31

1:30 p.m.

September 21, 2021

Plaintiffs Andrea Eva Magyar and Sandor Vlaszof (collectively, “Plaintiffs”) filed this action against Defendants Kaiser Permanente Medical Center (“Kaiser”) and Modern Parking, Inc. for negligence and premises liability.

On August 5, 2021, Kaiser filed the instant motion for an order deeming the truth of matters in Kaiser’s request for admissions, set one, admitted against Plaintiffs. On August 10, 2021, Kaiser’s ex parte application to specially set a hearing date for the motion was granted, and a hearing was set for September 21, 2021.

However, on August 25, 2021, Kaiser’s motion for summary judgment was granted. In light of the ruling granting Kaiser’s motion for summary judgment, Kaiser’s motion to deem request for admissions is moot.

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 21st day of September, 2021

Hon. Audra Mori

Judge of the Superior Court

'b"

Case Number: 19STCV32822 Hearing Date: August 24, 2021 Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ANDREA EVA MAGYAR, ET AL.,

Plaintiff(s),

vs.

KAISER PERMANENTE MEDICAL

CENTER, ET AL.,

Defendant(s).

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CASE NO: 19STCV32822

[TENTATIVE] ORDER GRANTING FOR SUMMARY JUDGMENT

Dept. 31

2:30 p.m.

August 24, 2021

1. Background

Plaintiffs Andrea Eva Magyar (“Magyar”) and Sandor Vlaszof (“Vlaszof”) (collectively, “Plaintiffs”) filed this action against Defendants Kaiser Permanente Medical Center (“Kaiser”) and Modern Parking, Inc. (“Modern”) (collectively, “Defendants”) for negligence and premises liability. Plaintiffs alleged that on September 21, 2017, Magyar parked at the rooftop level of Kaiser’s parking structure, which was in the possession and control of Modern, and that as Magyar proceeded to take the stairs down, she slipped and fell down the wet stairs. The complaint includes a claim for loss of consortium by Vlaszof.

Kaiser now moves for summary judgment. Modern filed a joinder to Kaiser’s motion. Plaintiff opposes the motion, and Defendants filed a reply.

2. Motion for Summary Judgment

a. Kaiser’s Moving Argument

Kaiser argues it is entitled to summary judgment because there was no dangerous or unsafe condition at the subject property. Kaiser contends that Plaintiffs allege Magyar slipped and fell on the parking lot steps because the yellow-painted stripes at the edge of each step rendered the steps slippery when wet from rainfall. Kaiser asserts Magyar did not observe any moisture on the steps, the surrounding areas of the parking lot, or the bottom of her shoes, nor did she see any debris or foreign matter on the steps. Kaiser contends the stairs were not wet, and Kaiser’s expert establishes the stairs were not dangerous whether wet or dry. Further, Kaiser argues the alleged condition of Defendant’s property was not a substantial factor in causing Plaintiff’s fall because there was adequate traction to safely traverse the steps.

b. Opposing Argument

Plaintiffs argue Defendants do not meet their moving burden, as Kaiser’s declarations in support of the motion lack foundation and relevance. Plaintiffs assert Magyar testified that she did not slip and fell on the yellow painted strips where the sun dried up all the moisture. She slipped in the shade where the moisture was still present on the yellow painted strips. Further, Plaintiffs contend the parties have submitted conflicting expert testimonies concerning the condition of the stairs.

c. Evidentiary Objections

In Plaintiffs’ separate statement submitted with their opposition, Plaintiffs assert objections to certain facts asserted. Objections to a separate statement are improper. (Cal. Rules of Code, rule 3.1354(b).) The court, therefore, declines to rule on the purported objections in the separate statements.

Plaintiffs further submits 16 separate objections with the opposition. Objections 1-2 made to the entirety of Merle A. Lintz, Jr. (“Lintz”) and Ned Wolfe, P.E. (“Wolfe”) are overruled. Objections 3-16 are directed at different facts in Kaiser’s separate statement, which is improper; the court declines to rule on the purported objections.

Defendants, in reply, submit 34 objections to Plaintiffs’ evidence. Objections 1-12, 15, 17, 20-26, 28, 30-31 and 33-34 are overruled. Objections 14, 18-19, 27 and 32 are sustained. Objections 13, 16 and 29 are not material to the disposition of the motion, and thus, the court declines to rule on them at this time.

d. Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted 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.” (Code Civ. Proc. §437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

(Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

e. Analysis

The elements of a premises liability and negligence cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) To determine the existence and scope of duty, courts consider the foreseeability of harm to the plaintiff, 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, and the extent of the burden to the defendant of imposing a duty to exercise care with resulting liability for breach. (Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

In this case, the incident occurred on September 21, 2017, between 9:30 a.m. and 9:45 a.m. on the rooftop level of Kaiser’s parking lot, where Plaintiff Magyar parked her vehicle and proceeded to the subject staircase at the northeast corner of the parking lot. (UMF 2, 9.) It was drizzling that morning, but when Plaintiff parked, the weather was sunny and was not raining. (UMF 15.) Each step on both flights of the subject staircase has a 2-inch-wide yellow painted stripe across the nose of the thread. (UMF 12.) The bottom half of the second flight of steps was in the shade, but Magyar was able to see the steps and yellow-painted stripes, as well as her foot on the shaded steps. (UMF 19.) Magyar slipped on the sixth step of the second flight and fell three to four steps down. (UMF 20.) Afterward, Magyar noted her hands and jeans were wet. (UMF 21.)

Kaiser submits the expert declaration of Ned Wolfe, P.E. (“Wolfe”) in contending there was no dangerous condition on Kaiser’s property. Wolfe asserts he inspected the subject staircase, including the sixth step Magyar allegedly slipped on. (Mot. Wolfe Decl. ¶¶ 6-9.) Further, Kaiser submits the declaration of its Chief Engineer for Facilities at the property, who opines the yellow traffic paint on the subject steps is the same now as it was on September 21, 2017. (Mot. Lintz Decl. ¶ 5.) Wolfe asserts he did slip tests on the staircase on the yellow-painted stripes under wet conditions, and the coefficient of friction (“COF”) result for the fourth, fifth, and sixth steps placed into a practically 100% confidence level where no slips occur for walking. (UMF 22-26.) Wolfe further opines that because water decreases friction levels, dry COF testing would have resulted in even higher values than those resulting during the inspections. (UMF 27.) Wolfe opines the yellow stripes provide traction and slip resistance even under wet conditions, and the painted surface is well suited for the parking and exceed industry standards. (UMF 28-29.) Wolfe provides accepted industry standards do not require Kaiser to use caution or warning signs for persons approaching the staircase, and the subject stairs were in a safe condition. (UMF 30, 32.) This is sufficient to meet Kaiser’s moving burden to showing there was no dangerous condition on its property. The burden now shifts to Plaintiffs to raise a triable issue of material fact.

In opposition, Plaintiffs contend Wolfe inspected the staircase almost three years and four months after Plaintiff’s fall. Plaintiffs contend the stairs were not in the same condition in 2021 when inspected as they were in 2017 when the incident occurred. Plaintiffs argue Magyar fell after she did not observe moisture on the stairs due to inadequate sunlight and lighting. Further, Plaintiffs contend there are conflicting expert opinions between Wolfe and Plaintiffs’ expert, Kenneth D. Newson (“Newson”).

Newson’s declaration largely attacks the credibility of Kaiser’s expert’s declaration and asserts Wolfe did not properly inspect the staircase. (Opp. Newson Decl. ¶¶ 6-17.) However, “The trial court may not weigh the evidence in the manner of a fact finder to determine whose version is more likely true [citations omitted]. Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Newson’s declaration essentially amounts to an attack on the credibility of Kaiser’s expert’s declaration. The nonmoving party cannot defeat summary judgment merely by raising an issue as to the credibility of the moving party's expert declarations, but must present competent counter-declarations or other sworn testimony affirmatively controverting the movant's expert evidence. (CCP § 437c(e) [“Summary judgment shall not be denied on grounds of credibility or for want of cross-examination of witnesses furnishing affidavits or declarations in support of the motion…”].)

Moreover, to the extent Newson opines on the condition of staircase, Newson merely states, “18. It is commonly known that a wet surfaces are slippery. ASTM F-1637-19.5.1.3 (Exhibit #7), requires that painted walkways contain an abrasive additive, cross-cut grooving and texturing. The painted surface seen in Exhibit 2 and my examination of the still available yellow paint does not conform to the requirements set out in Exhibit #7.” (Opp. Newson Decl. ¶ 18.) Newson’s does not provide any facts to support his ultimate opinion that the painted in Exhibit 2 does not conform to the requirements in Exhibit 7. An expert opinion unsupported by reasons or explanations cannot establish the absence or presence of a material fact issue for trial. (Kelley v. Trunk (1998) 66 Cal.App.4th 519, 525 [summary judgment standard not satisfied by “expert declarations which provide only an ultimate opinion, unsupported by reasoned explanation.”].)

Newson’s declaration is conclusory and fails to raise a triable issue of fact as to the stairs being in a dangerous condition. Even in accepting the stairs were wet and Magyar did not see the moisture on the stairs because of inadequate lighting, Wolfe’s declaration establishes the stairs were safe even in a wet condition.

3. Conclusion

Defendant Kaiser’s motion for summary judgment and Modern’s joinder are granted.

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

Dated this 24th day of August, 2021

Hon. Audra Mori

Judge of the Superior Court

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Case Number: 19STCV32822    Hearing Date: August 19, 2020    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

ANDREA EVA MAGYAR, ET AL.,

Plaintiff(s),

vs.

KAISER PERMANENTE MEDICAL

CENTER, ET AL.,

Defendant(s).

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CASE NO: 19STCV32822

[TENTATIVE] ORDER DENYING PETITION TO COMPEL AND STAY ACTION

Dept. 31

1:30 p.m.

August 19, 2020

 

  1. Background and Summary of Ruling

    Plaintiffs Andrea Eva Magyar (“Magyar”) and Sandor Vlaszof (“Vlaszof”) (collectively, “Plaintiffs”) filed this action against Defendants Kaiser Permanente Medical Center (“Kaiser”) and Modern Parking, Inc. (“Modern”) for negligence and premises liability. Plaintiffs alleged that on 9/21/17, Magyar parked at the rooftop level of Kaiser’s parking structure, which was in the possession and control of Modern, and that as Magyar proceeded to take the stairs down, she slipped and fell down the wet stairs.

    Kaiser moves to compel arbitration and stay the action. The court denies the motion. The parties did not agree to arbitrate claims relating to Kaiser’s status as the owner of a parking lot open to the public. The parking lot is not part of the medical services Kaiser provided to Plaintiff Magyar. Kaiser has not duty to provide parking to Plaintiffs as part of the parties’ Agreement. Plaintiffs’ relationship with Kasier regarding the public parking lot is the same as the relationship of non-Kaiser members who park in the lot. Claims relating solely to the parking lot are not claims the parties agreed to arbitrate.

  2. Petition to Compel Arbitration

  1. Moving Argument

Kaiser avers Plaintiffs’ claims are subject to binding arbitration pursuant to the provisions of the Group Agreement and Combined Disclosure Form and Evidence of Coverage (the “Agreement”), through which Plaintiffs Kaiser members and under which they sought and obtained benefits. Kaiser contends the agreement provides for arbitration arising of the Agreement, irrespective of the legal theories upon which the claim is asserted, including claims for premises liability. Kaiser argues Plaintiffs’ claims arise from Plaintiffs’ visit to a Kaiser facility, and that Kaiser’s records reflect Plaintiffs were enrolled under the Agreement from 7/1/16 through present time. Kaiser contends that as a result, the Agreement, which is signed by Vlaszof, is valid and requires the parties submit Plaintiffs’ claims to arbitration. Further, Kaiser asserts the broad language of the arbitration provision encompasses Plaintiffs’ claims, as Plaintiffs’ claims arise directly from the relationship between Plaintiffs and Kaiser created by the Agreement and the duties to provide medical facilities for use by Health Plan members, which gave rise to the instant action for premises liability.

  1. Opposing Argument

Plaintiffs oppose the Petition to Compel Arbitration on the grounds that t (1) Kaiser offered no admissible evidence to support its application claiming that the contractual arbitration clause was properly agreed to and negotiated between the parties or that Plaintiff was even aware of the arbitration clause; (2) Kaiser offered no admissible evidence that the arbitration clause is valid; (3) that the arbitration clause, part of the health plan, is not applicable, where an insured member is injured in a public parking lot, not at any Kaiser’s medical facility, unrelated to any medical treatment by Kaiser to its members; (4) Plaintiff is not a “member” party as Plaintiff does not claim that Kaiser’s duty to Plaintiff “arises from a member’s relationship to …. Kaiser”; (5) that Modern Parking, Inc, a codefendant, who is jointly and severally liable to Plaintiffs’ damages, is also not a party to the arbitration agreement; and (6) that adjudicating the same facts and damages in two different forums is contrary to judicial economy and may result in conflicting judgments.

  1. Analysis

  1. Kaiser’s Arbitration Agreement is Valid and Enforceable.

“California law reflects a strong public policy in favor of arbitration as a relatively quick and inexpensive method for resolving disputes. To further that policy, section 1281.2 requires a trial court to enforce a written arbitration agreement unless one of three limited exceptions applies. Those statutory exceptions arise where (1) a party waives the right to arbitration; (2) grounds exist for revoking the arbitration agreement; and (3) pending litigation with a third party creates the possibility of conflicting rulings on common factual or legal issues.” (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 967; CCP § 1281.2.)

In deciding a petition to compel arbitration, trial courts must decide first whether an enforceable arbitration agreement exists between the parties, and then determine the second gateway issue whether the claims are covered within the scope of the agreement. (Omar v. Ralphs Grocery Co. (2004) 118 Cal.App.4th 955, 961.) The opposing party has the burden to establish any defense to enforcement. (Gatton v. T-Mobile USA, Inc. (2007) 152 Cal.App.4th 571, 579 (“The petitioner, T–Mobile here, bears the burden of proving the existence of a valid arbitration agreement and the opposing party, plaintiffs here, bears the burden of proving any fact necessary to its defense.”).)

In this case, the subject Agreement provides in pertinent part:

Binding Arbitration

Scope of Arbitration

Any dispute shall be submitted to binding arbitration if all of the following requirements are met:

Members enrolled under this DF/EOC thus give up their right to a court or jury trial, and instead accept the use of binding arbitration …

As referred to in this “Binding Arbitration” section, “Member Parties” include:

(Petition Exh. A., pp.117-18.)

Kaiser contends that the Agreement satisfies CCP § 1295(f) because the Agreement specifies the type of disputes subject to arbitration, the process to be utilized, and how arbitration is to be initiated. Kaiser further asserts that it provided the Agreement to Vlaszof for dissemination to prospective Health Plan subscribers, and that the California Choice Application signed by Vlaszof on 6/27/16, similarly advised him that all claims against Kaiser are subject to arbitration. (Petition Exhs. A, C.) Furthermore, Kaiser submits the declaration of Mayisha Woods, who attests to being familiar with the Agreement and the California Choice Application signed by Vlaszof as they are kept in the ordinary course of business. (Petition Woods Decl. ¿¿ 1-5.)

Moreover, Plaintiffs, in opposition, contend the Agreement to arbitrate is not valid because Magyar did not sign or know about the Agreement, and that her silence did not constitute acceptance of the subject terms. Although the Agreement was signed by Vlaszof and generally parties who are not signatories to an arbitration agreement cannot be compelled to arbitrate, a spouse can bind another to a medical arbitration agreement without the other person’s consent. (See Buckner v. Tamarin (2002) 98 Cal.App.4th 140, 142; see also Hawkins v. Superior Court (1979) 89 Cal.App.3d 413, 418-19 [binding both spouses when one spouse enters into an agreement for medical services applicable to both spouses]; cf. Herbert v. Superior Court (1985) 169 Cal.App.3d 718, 724 [“… [Spouse] and the five minor children who were members of the [health] plan are bound by the contractual provisions of the plan agreement, including the arbitration clause.”].)

In addition, “one who assents to a contract is bound by its provisions and cannot complain of unfamiliarity with the language of the instrument.” (Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 710; accord. Harris v. Superior Court (1986) 188 Cal.App.3d 475, 479 [“the voluntary acceptance of the benefit of a transaction constitutes consent to all the obligations arising from it, so far as the facts are known, or ought to be known, to the person accepting.”].) Plaintiffs do not dispute that after the application was accepted, Plaintiffs availed themselves of the services provided under the plan by Kaiser.

Kaiser, thus, establishes the existence of an enforceable arbitration agreement.

  1. The Arbitration Clause Does Not Extend to Plaintiff’s Claims.

Kaiser asserts the arbitration provision’s language is broad enough to encompass Plaintiffs’ claim, as Plaintiffs’ claims arise directly from the relationship between Plaintiffs and Kaiser created by the Agreement.

In opposition, Plaintiffs contend that the broad scope of the subject arbitration provision does not encompass Plaintiffs’ claims because the claims do not have their roots in the relationship between the parties that was created by the contract for medical services. Plaintiffs assert that Magyar’s slip and fall accident at a public parking lot, operated by Modern, has nothing to do with Magyar’s relationship to Kaiser as a health plan member. Magyar contends that Kaiser fails to explain how Magyar’s injuries suffered in a public parking lot, where no health care services were provided, are related to her health insurance contract with Kaiser. Rather, Plaintiffs argue that their claims would be subject to arbitration only if Magyar was injured while receiving medical services at Kaiser’s facilities. Moreover, Plaintiffs assert that the parking structure was not a members’ only structure, and Kaiser is named as a defendant as the owner of the parking structure, not as a healthcare provider.

Kaiser, in reply, contends that Plaintiffs’ claims against Kaiser are based on premises liability, for an alleged unsafe condition in Kaiser’s parking lot, and that the injury occurred while Magyar was visiting Kaiser for a scheduled appointment. Further, Kaiser contends that the plain language of the Agreement does not restrict arbitration to claims that arise while medical services are being provided.

There is a “ ‘strong public policy in favor of arbitration as a speedy and relatively inexpensive means of dispute resolution.’ “ (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, 8-9) However, it is essential to the proper operation of that policy that “ ‘[t]he scope of arbitration is ... a matter of agreement between the parties' [citation], and ‘ “[t]he powers of an arbitrator are limited and circumscribed by the agreement or stipulation of submission.” ‘ [Citations.]” (Ibid.)

The purpose of contract interpretation is to give effect to the intention of the parties, and it requires a determination of what the parties meant by the words they used. (Pacific Gas & Elec. Co. v. G.W. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33, 38.) “Our objective in construction of the language used in the contract is to determine and to effectuate the intention of the parties. [Citation.] It is the outward expression of the agreement, rather than a party's unexpressed intention, which the court will enforce.” (Winet v. Price (1992) 4 Cal.App.4th 1159, 1165-1166.)

The subject arbitration provision, in this case, provides that any dispute shall be submitted to binding arbitration if “[t]he claim arises from or is related to an alleged violation of any duty incident to or arising out of or relating to this DF/EOC or a Member Party’s relationship to Kaiser Foundation Health Plan, Inc. (Health Plan), including any claim for medical or hospital malpractice …, for premises liability, or relating to the coverage for, or delivery of, services or items, irrespective of the legal theories upon which the claim is asserted.” (Petition Exh. A at pp. 117-18.)

The court agrees that the language does not limit the application of the arbitration clause to instances where medical services are being provided; however, Kaiser does not establish that Plaintiffs’ injuries in a separate public parking lot arose from or relate to any duty incident to or relating to the subject agreement. Kaiser does not provide any evidence showing parking in the lot is in any way a duty incident to or relating to Plaintiffs’ health plan. Kaiser’s duties under the Agreement are independent of any decision by Kaiser to provide parking at the subject structure.

Plaintiffs’ claims are based solely on Kaiser and Modern’s alleged failure to properly maintain the stairs in the public parking garage and to warn of the dangerous condition. The claims are not related to or incident to any duty owed by Kaiser under the subject health insurance agreement. (See Bos Material Handling, Inc. v. Crown Controls Corp. (1982) 136 Cal.App.3d 99, 105-06 [“In the particular situation where contracts provide arbitration for “ ‘any controversy ... arising out of or relating to the contract ...’ ” the courts have held such arbitration agreements sufficiently broad to include tort, as well as contractual, liabilities so long as the tort claims “have their roots in the relationship between the parties which was created by the contract.””].)

As Plaintiffs argue, Magyar’s slip and fall incident at the public parking lot has nothing to do with Magyar’s relationship to Kaiser as a health plan member. The scope of the agreement does not include premises liability claims based on Kaiser’s alleged failure to maintain stairs at a parking garage unrelated to the subject Agreement.

Moreover, as Plaintiffs contend, the arbitration clause cannot be enforced against Modern. Consequently, there is a risk of inconsistent rulings if the case proceeds by way of litigation against Modern, but by way of arbitration against Kaiser.

CCP § 1281.2 provides in part,

On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that:

(c) A party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party, arising out of the same transaction or series of related transactions and there is a possibility of conflicting rulings on a common issue of law or fact. For purposes of this section, a pending court action or special proceeding includes an action or proceeding initiated by the party refusing to arbitrate after the petition to compel arbitration has been filed, but on or before the date of the hearing on the petition. This subdivision shall not be applicable to an agreement to arbitrate disputes as to the professional negligence of a health care provider made pursuant to Section 1295.

(CCP § 1281.2(c).)

While Kaiser contends that CCP § 1281.2(c) does not apply to the Agreement at issue because the Agreement concerns an arbitration clause with a health care provider, and so the possibility of conflicting rulings is not relevant, Plaintiffs’ claims do not concern any disputes regarding professional negligence of Kaiser as a health care provider. Rather, Plaintiffs’ claims are based solely on Kaiser’s status as the owner of the subject parking lot. It is entirely possible that an arbitrator could find Kaiser 100% liable for the incident, while a jury could find Modern to have a different percentage of liability for the incident; this would be inconsistent. Kaiser does not meet its initial burden to establish the Agreement covers Plaintiffs’ claims in this action.

The petition to compel arbitration is therefore denied.

Moving Defendant is ordered to give notice.

Parties who intend to submit on this tentative must send an email to the court at sscdept31@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.

 

Dated this 19th day of August, 2020

Hon. Thomas D. Long

Judge of the Superior Court

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