HIND WAKIL VS UNIVERSAL STUDIOS HOLLYWOOD

Tentative Rulings

Case Number: *******9069 Hearing Date: June 21, 2022 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. INTRODUCTION

   On July 31, 2020, plaintiff Hind Wakil filed this action against Universal Studios Hollywood after sustaining injuries on August 13, 2018, during a trip to Universal Studios. Plaintiff named Universal Studios Store Hollywood, LLC as Doe 1, NBC Universal Theme Parks as Doe 2, and Universal City Studios LLC (“Defendant”). Universal Studios Hollywood, Universal Studios Store Hollywood, LLC, and NBC Universal Theme Parks were eventually dismissed without prejudice, leaving only Defendant in this action.

   In order to provide background, the Court summarizes the facts giving rise to this action. On August 13, 2018, Plaintiff was at Universal Studios Hollywood with her family when she was accidentally struck in the head with a metal water bottle as she was exiting the “Water World” show attraction. Plaintiff alleges Defendant did not provide safe procedures and means of ingress and egress or safe and proper crowd control. Plaintiff further alleges Defendant “failed to control safe bodily movements and use of metal objects.” (Compl., 7.)

   On May 5, 2022, the Court denied Defendant’s motion for summary judgment. Plaintiff served a notice of ruling on May 13, 2022. Defendant timely filed this motion for reconsideration.

2. LEGAL STANDARD

The moving party must present new facts, circumstances or law in order to grant a motion for reconsideration. (See Code Civ. Proc., 1008, subd. (a); see also Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) The party seeking reconsideration of an order shall state by affidavit what application was made before, what order or decisions were made, and what new or different facts or circumstances are claimed to be shown. (Code Civ. Proc., 1008, subd. (a).) Further, “…the party seeking reconsideration must provide not only new evidence but also a satisfactory explanation for the failure to produce that evidence at an earlier time.” (Glade v. Glade (1995) 38 Cal.App.4th 1441, 1457 [emphasis added].) The legislative intent was to restrict motions for reconsideration to circumstances where a party offers the court some fact or circumstance not previously considered and some valid reason for not offering it earlier. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)

1. DISCUSSION

   Defendant argues that new deposition testimony from nonparty Matt McLaughlin (“McLaughlin”), its former senior manager of investigations for loss prevention and security, is relevant to the issues of crowd control and safety. Specifically, McLaughlin testified that the surveillance video reflected a “normal exit pattern” and stated that he did not recall a “specific need for security at that location at that exit point.”

   Defendant blames Plaintiff for the delay in deposing McLaughlin and states that McLaughlin’s deposition was initially noticed for May 24, 2021, but did not go forward until April 8, 2022, which is after Defendant filed its motion. Defendant argues that a copy of the deposition transcript was not received until May 5, 2022, and it was therefore unable to submit McLaughlin’s testimony along with its moving papers.

   Defendant’s excuse for failing to bring this deposition testimony to the court’s attention earlier is not well-taken. Even if McLaughlin were not employed by Defendant, it is undisputed that McLaughlin is a nonparty unaffiliated with any party. Therefore, Defendant could have issued its own subpoena to McLaughlin to compel his testimony or secured a declaration. Accordingly, Defendant fails to provide a valid reason for reconsideration.

2. CONCLUSION

Defendant’s motion for reconsideration is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Case Number: *******9069 Hearing Date: May 5, 2022 Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. INTRODUCTION

On July 31, 2020, plaintiff Hind Wakil filed this action against Universal Studios Hollywood after sustaining injuries on August 13, 2018, during a trip to Universal Studios. Plaintiff named Universal Studios Store Hollywood, LLC as Doe 1, NBC Universal Theme Parks as Doe 2, and Universal City Studios LLC (“Defendant”). Universal Studios Hollywood, Universal Studios Store Hollywood, LLC, and NBC Universal Theme Parks were eventually dismissed without prejudice, leaving only Defendant in this action.

On October 22, 2020, Defendant filed an answer.

On October 8, 2021, Defendant filed this motion for summary judgment on the grounds that there are no triable issues of material fact. Defendant also states that it seeks summary adjudication as to certain issues, including that: (1) it is not liable under theories of premises liability or negligence, (2) there was no dangerous condition, (3) it did not breach any duty of care, and (4) it was not the proximate of Plaintiff’s fall and corresponding injuries.

1. FACTUAL BACKGROUND

Plaintiff visited Universal Studios Hollywood on August 13, 2018, with her husband and three children. (Defendant’s Undisputed Material Fact (“UMF”) Nos. 2-3.) She attended the Water World Show and while exiting the show, she was struck in the head by a metal object. (UMF Nos. 4-5.) It is undisputed that Plaintiff was hit in the head by accident. (UMF Nos. 6, 8.) The object which struck her head was a metal water bottle, which Plaintiff did not consider to be a concealed weapon. (UMF Nos. 9, 10.) Plaintiff’s daughter witnessed an unidentified woman lose her balance while holding her child and, as she regained her balance, the woman hit Plaintiff in the head with the metal water bottle.

1. LEGAL STANDARD

In reviewing a motion for summary judgment, courts 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.)

“[T]he 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.” (Code Civ. Proc., 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “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.)

1. EVIDENTIARY OBJECTIONS

   No evidentiary objections were submitted.

2. DISCUSSION

Plaintiff’s Complaint does not specifically identify multiple causes of action, but is instead titled as a “complaint for negligence, premises liability, product liability and request for jury trial.” Defendant construes the Complaint as one which asserts only causes of action for premises liability and negligence and bases its motion on this interpretation.

As framed by the pleadings, Plaintiff alleges Defendant failed to provide: (1) safe procedures and means of ingress and egress, and (2) safe and proper crowd control, and (3) failed to control safe bodily movements and use of metal objects. (Compl., 9.) Plaintiff alleges these failures caused her to fall and sustain serious and permanent injuries. (Compl,. 7.)

Premises liability is a form of negligence in which a property owner or possessor has a duty to exercise ordinary care in managing its property to avoid risks of harm to persons coming onto the property. (Rowland v. Christian (1968) 69 Cal.2d 108, 119; Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.

Defendant asserts that “based upon well-recognized California precedent”, it does not owe Plaintiff a duty to the extent alleged by Plaintiff under these facts. The precedent Defendant relies on consists of Ortega v. K-Mart Corp. (2001) 26 Cal.4th 1200, 1205 and Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 439. Yet, neither case, let alone the cited portions of them, discuss whether a duty exists in a premises liability case such as this one. In Ortega, which involved a slip and fall at a store, the California Supreme Court evaluated whether a plaintiff can establish constructive notice of a dangerous condition by drawing an inference of negligence from the failure to inspect the premises within a reasonable time. In Nola M., which involved third-party assault, the Court of Appeals did not analyze the element of duty because the defendant did not dispute that a duty was owed; instead, the court analyzed the element of causation.

In Rowland v. Christian (1968) 69 Cal.2d 108, 112, the California Supreme Court articulated a number of factors which courts have used to determine whether a particular defendant owed a tort duty to a given plaintiff. (Rowland v. Christian (1968) 69 Cal.2d 108, 112.) These include: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved. (Id. at pp. 112-113.) The existence of a legal duty “depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liability.” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 530.)

Defendant argues that it is entitled to summary judgment because it claims Plaintiff’s injuries “arose from the independent actions of an unidentified individual.” (Motion, 1:16-19.) Defendant argues it does not owe a duty to Plaintiff to control the actions of every one of its patrons and that such a duty would obligate it to “remove every inherently innocent object brought onto its premises by each patron on the basis that they could constitute a concealed danger.” (Motion, 5:26-6:1.) While this broad statement presents superficial appeal, Defendant does not actually analyze whether it owes any of the duties alleged by Plaintiff, which include the duty to provide safe procedures and means of ingress and egress, safe and proper crowd control, and control of safe bodily movements and the use of metal objects. The Nola M. court, in its brief discussion of duty, stated that:

“There are a number of situations in the law of negligence where a defendant, including a landowner, may be liable for providing or not removing the opportunity for another to do harm. [citation] If the place or character of the landowner’s business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it and to use such means of protection as are available to afford reasonable protection.”

(Nola M., supra, 16 Cal.App.4th at p. 426.)

Defendant does not discuss these considerations or the elements involved in determining the scope of one’s duty and the Court declines to construct an argument and perform an analysis on Defendant’s behalf.

Next, Defendant argues that, even if it owed Plaintiff a duty, it did not breach such a duty because Plaintiff cannot establish that a dangerous condition existed at the time of the incident, or that it had actual or constructive notice of the condition. Defendant claims that the undisputed evidence shows no dangerous condition existed because a metal water bottle is not dangerous. However, in Plaintiff’s responses to Defendant’s form interrogatories, she states, among other things, that Defendant allowed hard surface metal items into the park, allowed a mass stampede at a small exit that does not safely accommodate a large crowd, did not have “safe crowd control”, and did not provide security guards at the exit. (Def.’s Ex. E, Response to FROG No. 12.) Plaintiff’s daughter also testified that the unidentified woman who hit Plaintiff with her water bottle had lost her balance “as a result of other people pushing her or bumping into her.” (Def.’s Ex. D, 16:18-16:11.) Based on this conflicting evidence, Defendant fails to meet its moving burden to show that Plaintiff cannot establish the existence of a dangerous condition.

As Defendant’s next argument regarding its knowledge of any dangerous condition is based on the faulty premise of there being no dangerous condition, the Court need not consider whether Defendant has shown that Plaintiff cannot establish that it had notice. Furthermore, notice is imputed to the landowner where he created the condition. Where the dangerous or defective condition of the property which causes the injury has been created by the property owner’s or owner’s employee’s negligence, “the owner of the property cannot be permitted to assert that he had no notice or knowledge of the defective or dangerous condition in an action by an invitee for injuries suffered by reason of the dangerous condition.” (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 806.) “Where…the evidence is such that a reasonable inference can be drawn that the condition was created by employees of the defendant, then the defendant is charged with notice of the dangerous condition.” (Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 385 [internal citations omitted].) Here, as one of her theories of liability, Plaintiff alleges that Defendant did not provide safe means of ingress and egress on its premises. As Defendant is alleged to have created such means of ingress and egress on its premises, knowledge of this allegedly dngerous condition would be imputed to it.

VI. CONCLUSION

In light of the foregoing, the Motion for summary judgment or, in the alternative, summary adjudication, is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.