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This case was last updated from Los Angeles County Superior Courts on 06/03/2019 at 03:37:56 (UTC).

MARIA PARRA SARIANANA VS HONG HOLDINGS LLC

Case Summary

On 03/15/2017 MARIA PARRA SARIANANA filed a Personal Injury - Other Personal Injury lawsuit against HONG HOLDINGS LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE and AMY D. HOGUE. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4247

  • Filing Date:

    03/15/2017

  • 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 Judges

LAURA A. SEIGLE

AMY D. HOGUE

 

Party Details

Plaintiff and Petitioner

SARIANANA MARIA PARRA

Defendants and Respondents

DOES 1 TO 50

HONG HOLDINGS LLC

WESTERN REFINING RETAIL LLC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

SALEH HUSSIN ESQ.

Defendant Attorneys

LEE HANNAH CHEEYON

COLMAN JONATHAN H. ESQ.

 

Court Documents

PROOF OF SERVICE SUMMONS

4/4/2017: PROOF OF SERVICE SUMMONS

DEFENDANTHONG HOLDING LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

8/31/2018: DEFENDANTHONG HOLDING LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

DECLARATION OF FERNANDA OCAMPO IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

8/31/2018: DECLARATION OF FERNANDA OCAMPO IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

DECLARATION OF JOHN BRAULT, MS, IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

8/31/2018: DECLARATION OF JOHN BRAULT, MS, IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

DEFENDANT HONC HOLDING LLC'S NOTICE OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION

8/31/2018: DEFENDANT HONC HOLDING LLC'S NOTICE OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION

DEFENDANTHONG HOLDING LLC'S NOTICE OF REQUEST AND REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION

8/31/2018: DEFENDANTHONG HOLDING LLC'S NOTICE OF REQUEST AND REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION

Opposition

10/26/2018: Opposition

Minute Order

10/29/2018: Minute Order

Order

10/29/2018: Order

Opposition

12/17/2018: Opposition

Ex Parte Application

12/17/2018: Ex Parte Application

Objection

1/3/2019: Objection

Reply

1/3/2019: Reply

Reply

1/3/2019: Reply

Objection

1/3/2019: Objection

Reply

1/3/2019: Reply

Motion for Leave

1/17/2019: Motion for Leave

Proof of Personal Service

2/5/2019: Proof of Personal Service

33 More Documents Available

 

Docket Entries

  • 05/07/2019
  • Answer; Filed by Western Refining Retail, LLC (Defendant)

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  • 04/16/2019
  • at 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 04/16/2019
  • at 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Jury Trial - Not Held - Continued - Stipulation

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  • 04/16/2019
  • [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Hong Holdings, LLC (Defendant)

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  • 04/16/2019
  • Minute Order ( (Jury Trial; Final Status Conference)); Filed by Clerk

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  • 04/03/2019
  • at 10:00 AM in Department 4B, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Continued - Court's Motion

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  • 04/03/2019
  • Minute Order ( (Final Status Conference)); Filed by Clerk

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  • 03/21/2019
  • Amendment to Complaint (Fictitious/Incorrect Name); Filed by Maria Parra Sarianana (Plaintiff)

    Read MoreRead Less
  • 02/21/2019
  • Notice of Ruling; Filed by Maria Parra Sarianana (Plaintiff)

    Read MoreRead Less
  • 02/14/2019
  • at 1:30 PM in Department 4B, Laura A. Seigle, Presiding; Hearing on Motion for Leave to Amend (Complaint) - Held - Motion Granted

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56 More Docket Entries
  • 07/05/2018
  • [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Defendant/Respondent

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  • 04/12/2017
  • DEMAND FOR TRIAL BY JURY ON BEHALF OF DEFENDANT HONG HOLDINGS LLC

    Read MoreRead Less
  • 04/12/2017
  • Demand for Jury Trial; Filed by Hong Holdings, LLC (Defendant)

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  • 04/12/2017
  • ANSWER TO COMPLAINT ON BEHALF OF DEFENDANT HONG HOLDINGS LLC

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  • 04/12/2017
  • Answer; Filed by Hong Holdings, LLC (Defendant)

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  • 04/04/2017
  • Proof-Service/Summons; Filed by Maria Parra Sarianana (Plaintiff)

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  • 04/04/2017
  • PROOF OF SERVICE SUMMONS

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  • 03/15/2017
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

    Read MoreRead Less
  • 03/15/2017
  • Complaint; Filed by Maria Parra Sarianana (Plaintiff)

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  • 03/15/2017
  • SUMMONS

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Tentative Rulings

Case Number: BC654247    Hearing Date: April 19, 2021    Dept: 27

[TENTATIVE] ORDER MOTION TO QUASH SUBPOENA FOR EMPLOYMENT RECORDS

On March 15, 2017, Plaintiff Maria Parra Sarinana

Plaintiff moves to quash Defendant’s subpoena directed to Department of Health Care Services for “[a]ny f]” on the grounds that it is overbroad, not limited as to scope, and attempt to obtain records that are invasive of her constitutional right to privacy and violate the patient/physician privilege.  Plaintiff also requests monetary sanctions and reimbursement of costs and attorney’s fees against Defendant and/or counsel of record in the amount of $2,160.  

A deposition subpoena may request (1) only the attendance and testimony of a deponent, (2) only the production of business records for copying, or (3) the attendance and testimony, as well as the production of business records.  (Code Civ. Proc., § 2020.020.)  The court, upon motion or the court’s own motion, “may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.  In addition, the court may make any other orders as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.”  (Code Civ. Proc., § 1987.1, subd. (a).)  “A deposition subpoena that commands only the production of business records for copying shall designate the business records to be produced either by specifically describing each individual item or by reasonably particularizing each category of item . . .”  (Code Civ. Proc., §2020.410, subd. (a).)

When a plaintiff puts her health and physical condition at issue, the privacy and privileges that normally attach to such sensitive information are “substantially lowered by the very nature of the action.”  (Heller v. Norcal Crab Addison, Inc. v. Superior Court Williams v. Superior Court (2017) 3 Cal.5th 531, 557.)   

However, “although in seeking recovery for physical and mental injuries plaintiffs have unquestionably waived their physician-patient . . . privileges as to all information concerning the medical conditions which they have put in issue, past cases make clear that such waiver extends only to information relating to the medical conditions in question, and open all of a plaintiff’s past medical history to scrutiny.”  (Britt v. Superior Court Davis v. Superior Court

Plaintiff argues that the subpoena is overbroad because it is not limited in scope based on body parts or time.  Plaintiff cites to her discovery responses which state that she “sustained injuries to [her] neck, back, right wrist and right knee.”  (Plaintiff’s Ex. D, Amended Response to Form Interrogatory 6.2.)

However, the Court notes that Plaintiff’s discovery responses also state that she sustained injuries to her head, cervical spine, thoracic spine, lumbar spine, right wrist, right knee, right shoulder, and arthritis.  (Id.)  Plaintiff (Def.’s A.)

The Court agrees with Defendant as for Defendant’s argument that any limitation will prevent it from discovering whether Plaintiff had a history of ongoing pain that may originate from other causes, the Court is less persuaded.  Plaintiff’s entire medical history would not be relevant unless Plaintiff has stated (in discovery or otherwise) that she has suffered similar accidents or injuries in the past.  Without a showing Plaintiff previous injuries, complaints of pain, from before February 29, 2016 (the date of the incident).  The possibility that she “may have” sustained other injuries to different body parts that also gave rise to complaints of pain is insufficient to demonstrate “direct relevance” of this information to the action at issue.  

Accordingly, Plaintiff’s Motion is GRANTED in part.  The Subpoena must be limited to seek medical records from February 26, 2016 to the present, but

The court may subd. (a).)  

The Court declines to impose monetary sanctions because both parties acted with substantial justification.  

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.  

Dated this 19th April 21

Case Number: BC654247    Hearing Date: December 04, 2020    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

PANAYIOTIS SKORDI, an individual; DESPINA NICOLA, an individual,

Plaintiffs,

vs.

THE NOVO; POWER MUSE

PRODUCTION; GOLDENVOICE, LLC;

AEG LIVE, LLC; and DOES 1-50, inclusive,

Defendants.

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CASE NO.: BC654247

[TENTATIVE] ORDER RE: DEEFENDANT DENA ROMIOS’ MOTION FOR SUMMARY JUDGMENT

Dept. 26

1:30 p.m.

December 4, 2020

I. INTRODUCTION

On March 28, 2017, Plaintiffs, Panayiotis Skordi and Despina Nicola, filed this action against Defendants, The Novo, Power Muse Productions, Goldenvoice, LLC, and AEG Live, LLC, to claim that the Defendants are liable for an attack by the Defendants’ security guards on Payayiotis Skordi. His wife, Despina Vandi, claims she suffered emotional distress when she saw the attack.

AEG Presents LA, LLC, which states that it was erroneously sued as The Novo, Goldenvoice, LLC, and AEG LIVE, LLC, filed a Cross-Complaint for indemnity against Power Muse Productions to allege that it had expressly agreed to indemnify the AEG Presents LC, LLC.

Power Muse Productions, which is a dba of Dena Romios, then filed a Cross-Complaint for indemnity against ROES 1 to 50.

The Defendant, Dena Romios, who dba Power Muse Productions, moves for summary judgment on the grounds that she did not hire, supervise, or retain the security and that she has no duty to indemnify for the conduct of the security guards. In the alternative, the Defendant seeks summary adjudication of the claim for punitive damages.

II. FACTUAL BACKGROUND

At a concert promoted by the Defendant on October 1, 2016, Plaintiffs suffered personal injuries when they were attacked by several security guards. The Defendant states that she did not witness the incident and that she did not hire, supervise, or retain the security guards.

The relevant pleadings for this motion are the Plaintiffs’ Complaint and the Cross-Complaints filed by AEG Presents LA, LLC.

The Plaintiffs commenced this action by filing a Complaint to seek relief under the following causes of action:

1) Assault and Battery;

2) Intentional Infliction of Emotional Distress;

3) Negligent Hiring, Supervision and Retention; and

4) Loss of Consortium.

In response, the Defendant, AEG Presents LA, LLC, filed a Cross-Complaint to seek relief under the following causes of action:

1) Express Indemnification;

2) Equitable Indemnification;

3) Equitable Contribution; and

4) Declaratory Relief.

III. LEGAL STANDARDS

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.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (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.)

IV. DISCUSSION

The Defendant, Dena Romios, seeks summary judgment on the Plaintiffs’ Complaint and AEG Presents LC, LLC’s Cross-Complaint. Under CCP section 437c, the Defendant has the burden of showing that an essential element cannot be established in each cause of action of both the Complaint and the Cross-Complaint.

1. Plaintiffs’ Complaint

The Defendant argues that she is not liable for the Plaintiffs’ injuries because she did not engage in any tortious conduct and because she did not employ or supervise the security guards. The Defendant seeks summary judgment on the ground that none of the four causes of action in the Complaint can be established against her. In the alternative, the Defendant seeks summary adjudication of the claim for punitive damages.

a. First Cause of Action for Assault and Battery

The Plaintiffs allege in paragraph 19 of the first cause of action that the Defendants and their employees intentionally assaulted and battered the Plaintiff. The essential elements of a cause of action for battery are:

1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff;

2) plaintiff did not consent to the touching;

3) plaintiff was harmed or offended by defendant’s conduct; and

4) a reasonable person in plaintiff’s position would have been offended by the touching.

(So v. Shin (2013) 212 Cal.App.4th 652, 669.)

In addition, the Plaintiff’s allegations show that he is claiming the Defendant is liable under a vicarious liability theory for the acts of the security guards. Under this doctrine, employers are liable for the torts of their employees that were committed within the scope of their employment. (Moreno v. Visser Ranch, Inc. (2018) 30 Cal.App.5th 568, 575-576.)

The Defendant provides evidence that she did not touch the Plaintiff and that she arrived after hearing the commotion (Separate Statement of Facts (“SSF”) 15 and 17; Romios decl., paragraph 8). Further, the Defendant provides evidence that she did not hire, employ, or provide the security guards, she did not supervise the security guards, and she did not authorize or ratify their conduct (SSF 24, 25, 26, and 27; Romios decl., paragraph 10, 11, and 13). This evidence shows that the Plaintiff cannot establish the essential element that the Defendant touched the Plaintiff or caused the Plaintiff to be touched. It also shows that the Defendant is not liable for the conduct of the security guards under the vicarious liability doctrine because she did not employ the security guards. As a result, the Defendant has met her burden of proof and the burden is shifted to the Plaintiff to show that a dispute of fact exists.

The Plaintiff did not file any opposition papers. As a result, the Plaintiff did not meet his burden.

Therefore, the undisputed facts show that the Plaintiff cannot establish the first cause of action.

b. Intentional Infliction of Emotional Distress

The Plaintiffs allege in paragraph 22 and 23 of the second cause of action that the Defendants engaged in extreme conduct and intended to cause the Plaintiff to suffer severe physical injury. The essential elements of a cause of action for intentional infliction of emotional distress are the following:

1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress;

2) the plaintiff’s suffering severe or extreme emotional distress; and

3) actual and proximate causation of the emotional distress by the defendant’s outrageous conduct.

(Hughes v. Pair (2009) 46 Cal.4th 1035,1050-1051.)

In addition, the Plaintiff’s allegations in the other portions of the Complaint show that he is claiming the Defendant is liable under a vicarious liability theory for the acts of the security guards. Under this doctrine, employers are liable for the torts of their employees that were committed within the scope of their employment. (Moreno v. Visser Ranch, Inc. (2018) 30 Cal.App.5th 568, 575-576.)

The Defendant provides evidence that she did not touch the Plaintiff and that she arrived after hearing the commotion (Separate Statement of Facts (“SSF”) 15 and 17; Romios decl., paragraph 8). Further, the Defendant provides evidence that she did not hire, employ, or provide the security guards, she did not supervise the security guards, and she did not authorize or ratify their conduct (SSF 24, 25, 26, and 27; Romios decl., paragraph 10, 11, and 13). This evidence shows that the Plaintiff cannot establish the essential element that the Defendant engaged in extreme or outrageous conduct with the intent of causing the Plaintiff to suffer severe emotional distress. It also shows that the Defendant is not liable for the conduct of the security guards under the vicarious liability doctrine because she did not employ the security guards. As a result, the Defendant has met her burden of proof and the burden is shifted to the Plaintiff to show that a dispute of fact exists.

The Plaintiff did not file any opposition papers. As a result, the Plaintiff did not meet his burden.

Therefore, the undisputed facts show that the Plaintiff cannot establish the second cause of action.

c. Negligent Hiring, Supervision and Retention

The Plaintiff alleges in paragraph 27 that the Defendants owed a duty of care to the Plaintiff to hire employees that would conform their conduct to the law and not inflict harm on customers. California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.)

The Defendant provides evidence that she did not hire, employ, or provide the security guards, she did not supervise the security guards, and she did not authorize or ratify their conduct (SSF 24, 25, 26, and 27; Romios decl., paragraph 10, 11, and 13). This evidence shows that the Plaintiff cannot establish the essential element that the Defendant had a duty of care with regards to the security guards because she did not employ the security guards. As a result, the Defendant has met her burden of proof and the burden is shifted to the Plaintiff to show that a dispute of fact exists.

The Plaintiff did not file any opposition papers. As a result, the Plaintiff did not meet his burden.

Therefore, the undisputed facts show that the Plaintiff cannot establish the third cause of action.

d. Loss of Consortium

The Plaintiff, Despina Nicola, alleges in paragraph 30 that as a result of the torts in the first, second, and third causes of action, she suffered a loss of consortium with her husband, Panayiotis Skordi. This cause of action dependent upon the existence of a cause of action for tortious injury to a spouse. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 746.) An unsuccessful personal injury suit by the physically injured spouse acts as an estoppel that bars the spouse who

would claim damages for loss of consortium. (Meighan v. Shore (1995) 34 Cal.App.4th 1025, 1035-1036.)

The above analysis shows that Panayiotis Skordi cannot establish his first, second, and third causes of action against the Defendant. As a result, the Plaintiff, Despina Nicola, cannot establish her cause of action for loss of consortium against the same Defendant.

Therefore, the undisputed facts show that the Plaintiffs cannot establish their first, second, third, and fourth causes of action in their Complaint. Since the Plaintiffs cannot establish any of their causes of action, the Defendant is entitled to summary judgment on the Plaintiff’s Complaint.

The Defendant’s request for summary adjudication of the claim for punitive damages is moot because this claim is encompassed by the order granting summary judgment on the Complaint.

2. AEG Presents LA, LLC’s Cross-Complaint

The Defendant also argues that she is entitled to summary judgment on AEG Presents LA, LLC’s Cross-Complaint because she did not engage in the torts and she did not hire the security guards who engaged in the conduct that caused the Plaintiffs’ injuries.

a. First Cause of Action for Express Indemnification

AEG Presents LA, LLC, alleges in paragraph 7 of the first cause of action that Dena Romios, dba Power Muse Productions, expressly agreed to indemnify it in the Public Event License Agreement.

Under California law, there are two types of indemnity claims based on a contract: express and implied. (Smoketree-Lake Murray v. Mills Concrete Constr. Co. (1991) 234 Cal.App.3d 1724, 1736-1737.) An indemnity claim based on an express contract to indemnify is an express contractual indemnity claim. (Id.) An indemnity claim based on contractual language not specifically dealing with indemnification is an implied contractual indemnity claim and this implied indemnity is a form of equitable indemnity. (Id.)

Express indemnity reflects its contractual nature and it permits great freedom of action to the parties in the establishment of the indemnity arrangements while at the same time subjecting the resulting contractual language to established rules of construction. (Id.) Implied contractual indemnity is based on the equities of the circumstances and is designed to apportion loss among contract parties based on the concept that one who enters a contract agrees to perform the work carefully and to discharge foreseeable damages resulting from that breach. (Id.)

Indemnity agreements ordinarily fall into two categories. (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628-629.). The first category includes agreements providing "indemnification against an indemnitee's own negligence. (Id.) The second category embraces agreements that do not address the issue of the indemnitee's negligence, a category called "'general' indemnity clauses." (Id.) General indemnity agreements "may be construed to provide indemnity for a loss resulting in part from an indemnitee's passive negligence, they will not be interpreted to provide indemnity if an indemnitee has been actively negligent." (Id. at p. 1537.) Whether negligence is to be characterized as active or passive is based on the circumstances of each case and presents a question for the trier of fact unless the evidence is so clear and undisputable that reasonable persons could not disagree. (Id.)

Exhibit D to the Defendant’s Notice of Lodging of Exhibits contains the Public Event License Agreement between AEG Live LA, LLC, and the Defendant. Paragraph 8 on page 5 contains the following indemnification clause:

8. Indemnification. Notwithstanding any other provision in this Agreement, Licensee shall indemnify and hold harmless Licensor and its affiliates (including, without limitation, Anschutz Entertainment Group, Inc. and AEG Live LLC), and their respective members, owners, officers, directors, agents, representatives, employees and landlords (the "Indemnitees") harmless from any claim(s), losses, damages, liabilities, demands, liens, suits and expenses (collectively,

"Claims") arising out of or related to (i) any performance of the Event; (ii) Licensee's use of the

Premises; (iii) any breach of any of Licensee's covenants or obligations hereunder, (iv) any act or

omission of Licensee, its members, partners, officers, directors, employees, contractors, agents

and other persons assisting Licensee (whether on a paid or voluntary basis), patrons, guests and

invitees, participants and artists appearing in the Event (including support personnel in

connection with the presentation of the Event), (v) any inaccuracy of any representation made by

Licensee hereunder; (vi) any advertisement related to the Event, and (vii) the content of any

song or verbal statement at any performance of the Event by any performer or other person

under the control of Licensee.

This is a general indemnity clause because it requires the Defendant to indemnify AEG Live LLC for any claim for losses, damages, or liabilities arising from the performance of the Event or “any act or omission” of the Licensee, persons assisting the Licensee, patrons, guests, invitees, participants, and artists appearing in the Event. The Defendant argues that this does not require her to indemnify AEG Live LLC for the claims by the Plaintiffs because their injuries do not arise out of or relate to the Event and because she did not hire or supervise the security guards who allegedly caused the Plaintiff’s injuries.

A review of Exhibit A to the contract, which is on page 9, reveals that it identifies the name of the “Event” as “Despina Vandi Live”. It does not define “Event” or limit “Event” to the performance. The Defendant argues that “Event” was to listen to and see the Greek singer, Despina Vandi. However, the contract does not define Event in such a limited manner, e.g., it does not limit the event solely to the time on which Despina Vandi is on the stage performing a song. Instead, it merely identifies the “Event” as “Despina Vandi Live”.

Further, in the deposition testimony of Despina Nicola, she testified that there were other artists performing (Defendant’s Notice of Lodging, exhibit D, 19:24 to 25). It is not clear whether “Despina Vandi Live” included the time when other artists were performing.

Also, in the Complaint, the Plaintiffs allege in paragraph 11 that they were attending a convert and that they were assaulted when they walked towards the side stage to say goodbye to a friend. It cannot be determined that this occurred after the “Event” of seeing “Despina Vandi Live” had concluded. The Defendant has not met her burden of proof because she does not provide evidence that the Plaintiffs’ injuries occurred after the “Event” had ended.

Further, the indemnification clause is not limited to the acts of security guards. Instead, a review of the language in paragraph 8 reveals that the Defendant agreed to indemnify for any act of the patrons, guests, and licensees. This would include the conduct of the Plaintiffs, who were patrons, guests, or licensees. The Defendant does not provide evidence that the Plaintiffs did not cause the incident that resulted in their injuries.

As a result, the Defendant has not met her burden of proof because she has not shown that the she has no duty under the express indemnity clause.

Further, in the opposition, AEG Live LLC, provides evidence in the declaration of a security guard, Walter Alfaro, that at the end of the show, the Plaintiff tried to walk backstage, and he stood in front of him to stop him (Compendium of Evidence in Opposition, Exhibit A, pages 18 to 19). Mr. Alfaro continues by testifying that the Plaintiff was agitated, punched the wall, and then began flailing his arms (Id.). Mr. Alfaro states that the Plaintiff’s flailing arms made contact with him and that Mr. Alfaro then attempted to restrain the Plaintiff because he believed the Plaintiff was about to harm him (Id.). This evidence shows that the Plaintiff’s injuries may have arisen from the Plaintiff’s conduct of trying to walk backstage and then touching the security guard while agitatedly gesturing his arms. This is evidence that creates a dispute of fact whether the Defendant had agreed to indemnify AEG Live LLC in the indemnification clause because it shows that the duty to indemnify arose from the acts of a patron, guest, or licensee.

Therefore, the Defendant has not shown that the first cause of action lacks merit.

b. Equitable Indemnification, Equitable Contribution, and Declaratory Relief

The Defendant’s motion for summary judgment of the Cross-Complaint is denied because the Defendant has not established that she is entitled to a judgment on the entire Cross-Complaint, i.e., she did not show that the first cause of action for express indemnity lacks merit.

Further, the Defendant did not request summary adjudication of these causes of action as alternative relief. Instead, the Defendant only sought summary adjudication of punitive damages.

The notice of motion must identify the causes of action or defenses to which the motion for summary adjudication is directed. (Sequoia Ins. Co. v. Sup.Ct. (Norden) (1993) 13 Cal.App.4th 1472, 1478). The court may not summarily adjudicate claims or defenses as to which no triable issue was raised unless requested in the notice of motion. (Homestead Sav. v. Sup.Ct. (Dividend Develop. Corp.) (1986) 179 Cal.App.3d 494, 498).

As a result, the Defendant cannot obtain summary adjudication on the second, third, and fourth causes of action in the Cross-Complaint.

Therefore, the Defendant has not established that she is entitled to summary judgment on the Cross-Complaint because there are questions of fact whether the indemnification agreement requires her to indemnify AEG Live LLC for damages arising from the incident between the Plaintiffs and the security guards.

V. CONCLUSION

In light of the foregoing, the Defendant’s motion for summary judgment of the Plaintiffs’ Complaint is GRANTED. However, the Defendant’s motion for summary judgment of AEG Live LLC is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT7@lacourt.org indicating the intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.

Dated this 4th day of January 2020

Hon. Edward B. Moreton, Jr.

Judge of the Superior Court

Case Number: BC654247    Hearing Date: July 17, 2020    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MARIA PARRA SARINANA,

Plaintiff,

vs.

HONG HOLDINGS, LLC, et al.,

Defendants.

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.: BC654247

[TENTATIVE] ORDER RE: MOTION FOR LEAVE TO FILE CROSS-COMPLAINT

Dept. 27

8:30 a.m.

July 17, 2020

On March 15, 2017, Plaintiff Maria Parra¿Sarinana¿(“Plaintiff”) filed this action against Defendant Hong Holdings LLC (“Hong Holdings”) for premises liability and negligence relating to a February 29, 2016 slip and fall.¿ Tesoro Refining & Marketing Company, LLC (“TRMC”) was named as a Doe defendant on November 13, 2019.  TRMC filed its answer on December 17, 2019.  Plaintiff filed an amended complaint on February 21, 2020.  TRMC filed this Motion for leave to file a cross-complaint on February 24, 2020.  TRMC seeks leave to file a cross complaint against Conico Coro, Inc. (“Conico”) for express indemnity, breach of contract, equitable indemnity, implied contractual indemnity, contribution, and declaratory relief.  

A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint.  (Code Civ. Proc. § 428.50, subd. (a).)  Any other cross-complaint may be filed at any time before the court has set a date for trial.  (Code Civ. Proc., § 428.50, subd. (b).)  A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b).  Leave may be granted in the interest of justice at any time during the course of the action.  (Code Civ. Proc., § 428.50, subd. (c).)  Where the proposed cross-complaint arises out of the same transaction as plaintiff’s claim, the court must grant leave to file the cross-complaint so long as defendant is acting in good faith.  (Code Civ. Proc., § 426.50.)

TRMC seeks to file a cross-complaint against Conico after it filed its answer on December 17, 2020 because it anticipated that Conico would defend and indemnify TRMC pursuant to a January 1, 2016 contractual agreement.  TRMC argues the cross-complaint arises out of the same transaction as Plaintiff’s claim because TRMC licenses and provides Shell-branded motor fuels to Conico at the gas station where Plaintiff slipped and fell.  TRMC alleges Conico operates the gas station and is contractually required to maintain, keep neat, clean, and safe the gas station, convenience store, and associated areas.  TRMC argues it acted in good faith because at the time it filed the answer, it anticipated that Conico would accept TRMC’s tender for defense and indemnity regarding this action. The tender was made on December 18, 2019, the day after it filed the answer.  The tender was repeated on January 8, 2020, but Conico did not accept these tenders.  TRMC filed this Motion on February 24, 2020.  

In opposition, defendant Hong Holdings argues that TRMC should not be allowed to file a cross-complaint because there is no evidence that TRMC recently discovered new facts or acted in good faith.  

However, TRMC submitted its tender the day after it filed its Answer and filed this Motion 60 days after Conico failed to accept it.  As for the trial date, TRMC contends it will have to be continued regardless of whether the cross-complaint is filed because the parties still need to conduct discovery.  TRMC also alleges Conico is already familiar with the scope of the underlying action, is represented by the same counsel as Defendant Hong Holdings, and is Hong Holding’s affiliate or subsidiary.  

Based on the foregoing, TRMC’s Motion is GRANTED. TRMC is ordered to file its Cross-Complaint against Conico within 5 days of the date of this Order. 

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.  

Dated this 17th day of July 2020

Hon. Edward B. Moreton, Jr. 

Judge of the Superior Court

Case Number: BC654247    Hearing Date: February 20, 2020    Dept: 27

[TENTATIVE] ORDER RE: DEEFENDANT HONG HOLDINGS LLC’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On March 15, 2017, Plaintiff Maria Parra Sarinana (“Plaintiff”) filed this action against Defendant Hong Holdings LLC (“Defendant”) for premises liability and negligence relating to a February 29, 2016 slip and fall.

On February 29, 2016, shortly before 7:15 p.m., Plaintiff pulled her vehicle into a Shell gas station and parked in front of gas pump #5. (Undisputed Material Fact “UMF” Nos. 1, 3.) At that time, a video surveillance system recorded the premises including pump #5. (UMF No. 2.) Two vehicles—a silver sedan (“First Vehicle”) and then a white sedan (“Second Vehicle”)—used pump #5 immediately before Plaintiff. (UMF Nos. 5, 6, 8.) According to the surveillance video, the owner of the Second Vehicle spilled gasoline onto the ground in front of or near pump #5 and then drove away without telling anyone about the spill. (UMF Nos. 10-12.) No other person used pump #5, and no other person walked near or around pump #5, before Plaintiff drove up and parked at pump #5. (UMF Nos. 12, 13.) Approximately one minute and seven seconds after the Second Vehicle pulled away, Plaintiff drove up and parked in front of pump #5. (UMF No. 14.) Plaintiff alleges she slipped and fell onto the ground while attempting to fill her vehicle with gas. (UMF No. 16.)

Defendant moved for summary judgment with a hearing on January 8, 2019, based on Plaintiff’s inability to show Defendant had notice of the dangerous condition of the dripped substance on the ground. Plaintiff argued in opposition that the dripped substance was not the only dangerous condition, that the floor itself constituted a dangerous condition because it was unreasonably slippery, and that the pump was not functioning properly. The complaint, however, did not allege the floor and pump as dangerous conditions. At the January 8, 2019 hearing, Plaintiff’s counsel stated Plaintiff wished to amend the complaint to allege those additional dangerous conditions. Accordingly, the Court continued the hearing to February 14, 2019.

On January 17, 2019, Plaintiff filed a motion for leave to amend the complaint, to be heard on February 14. On February 14, the Court granted the motion for leave to amend and took the motion for summary judgment off calendar. The Court ordered that Plaintiff was to file the amended complaint within five days. Plaintiff never did that, although the parties have been litigating over the last year as if Plaintiff had filed the amended complaint. Plaintiff is ordered to file the amended complaint immediately.

The amended complaint alleged, “Negligent acts and omissions include, but are not limited to 1.) Defendants . . . created and had notice of the condition and failed to adequately warn of liquid spilled on Defendants’ premises. 2.) Defendants . . . failed to properly maintain the surrounding gas pumps on the premises and negligently allowed gasoline to spill and create a dangerous condition. 3.) Defendants . . . were on notice and allowed the existence of an unreasonably slippery floor on the premises.”

On September 18, 2019, Defendant filed another motion for summary judgment. The Court continued the hearing date to allow Plaintiff to take additional discovery. Plaintiff filed her opposition several days late and failed to comply with Code of Civil Procedures section 1005, subdivision (c) requiring service by means reasonably calculated to ensure delivery to the other party not later than the close of the next business day. Therefore, the Court continued the hearing on the motion again to allow Defendant additional time to file reply papers.

II. LEGAL STANDARDS

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.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (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.)

III. EVIDENTIARY OBJECTIONS

Plaintiff’s Evidentiary Objections to the Declaration of Fernanda Ocampo:

Objection No. 1 is OVERRULED.

Objection No. 2 is SUSTAINED.

Plaintiff’s Evidentiary Objections to the Declaration of John Brault, MS:

Objection Nos. 3-5 are OVERRULED as the content attested to is not in genuine dispute, as shown by the separate statements of undisputed facts.

Defendant’s Evidentiary Objections to the Declaration of Eris J. Barillas:

Objection Nos. 1-8 are OVERRULED.

Defendant’s Evidentiary Objections to the Declaration of Brad P. Avrit:

Objection Nos. 1, 2, 3, 19 are OVERRULED.

Objection Nos. 4-18 are SUSTAINED.

Defendant’s Objections to Plaintiff’s “Improperly Obtained Evidence”:

Defendant objects to evidence obtained by Plaintiff during an allegedly unauthorized site inspection on December 11, 2018. The gas station was accessible by the public, and Plaintiff’s lack of notice to Defendant that Plaintiff’s expert would be at the gas station conducting an inspection of areas readily accessible to the general public is not sufficient grounds to exclude the evidence.

IV. DISCUSSION

Plaintiff alleges causes of action for premises liability and negligence against Defendant. 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.) While an owner of premises is not an insurer of the safety of its patrons, the owner still owes them a duty to exercise reasonable care in keeping the premises reasonably safe. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) For example, a “store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.” (Ibid.) The exercise of ordinary care may require the owner to take greater precautions or to make more frequent inspections, but ultimately, the owner must use the care required of a reasonably prudent person acting under the same circumstances. (Ibid.)

To establish liability for negligence, “[t]here must be some evidence . . . to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.” (Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, 829; Ortega, supra, 26 Cal.4th at p. 1206 [the owner must have had actual or constructive knowledge of the dangerous condition or have had the ability, through the exercise of ordinary care, to discover it, and sufficient time to correct it].) “The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence.” (Ortega, supra, 26 Cal.4th at p. 1206.)

“The exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, because, obviously, it varies according to the circumstances.” (Louie v. Hagstrom’s Food Stores (1947) 81 Cal.App.2d 601, 608.) Typically, the question of whether a condition existed so long as to be discoverable within a reasonable time is a question of fact to be decided by the jury. (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 807; Tuttle v. Crawford (1936) 8 Cal.2d 126, 130; Rothschild v. Fourth & Market St. Realty Co. (1934) 139 Cal.App. 625, 627.) However, if there is no substantial evidence from which it can be reasonably inferred that the condition existed for a sufficient period of time to charge the defendant with constructive notice of its presence and to remedy the condition, a defendant may be entitled to judgment as a matter of law. (Perez v. Ow (1962) 200 Cal.App.2d 559, 562.)

Defendant moves for summary judgment on grounds Plaintiff cannot show it had notice of the dangerous conditions. First, Defendant argues the spilled gasoline existed for an insufficient amount of time for Defendant to have discovered and remedied it in the exercise of reasonable care. The only evidence of how long the spilled gasoline existed is the surveillance footage, which shows the owner of the Second Vehicle spilling gasoline in front of pump #5, then getting into the car, and driving away. One minute and seven seconds later, Plaintiff pulls up in her vehicle, parks in front of pump #5, and then slips and falls as she attempts to fill her vehicle with gas. Defendant argues one minute and seven seconds is not sufficient time to have reasonably discovered and remedied the condition.

Plaintiff argues Defendant has not met its burden because it has failed to negate actual or constructive notice. Plaintiff contends Defendant must show its employee did not observe the gasoline on the floor. Plaintiff argues that at the time of the incident, Michael Figueroa Morales was the cashier at the gas station. (Plaintiff’s Additional Facts “AF” No. 33.) Employees of the gas station are to perform daily inspections of the fuel pumps on the premises and to visually inspect all areas of the premises for safety and tripping hazards two to three times per shift. (AF Nos. 35, 36.) The area where Plaintiff fell is visible from the cashier area, and there is a surveillance system with a video monitor located within the cashier area. (AF No. 37.) Therefore, Plaintiff argues Defendant knew or should have known of the presence of the spilled gasoline prior to Plaintiff’s arrival. (AF No. 38.)

Plaintiff’s assertion that Defendant must negate actual or constructive knowledge and prove its cashier did not observe the liquid spilling is incorrect. “The plaintiff has the burden to prove the owner had actual or constructive notice of the defect in sufficient time to correct it.” (Ortega, supra, 26 Cal.4th at p. 1203.) Plaintiff must show there was a triable issue of material fact as to whether Defendant had actual or constructive notice. “The decisive point of inquiry is the length of time the condition had existed.” (Perez, supra, 200 Cal.App.2d at p. 560.) In Girvetz, supra, the plaintiff slipped on a banana near the check out aisles with approximately fifteen employees within a radius of fifteen feet from the scene of the accident. (Girvetz, supra, 91 Cal.App.2d at p. 831.) The only evidence as to the length of time the banana was on the floor was the testimony of another shopper who stated she saw the banana on the floor approximately one-and-one-half minutes before Plaintiff slipped. (Id. at p. 828.) Absent evidence that the condition was caused by the defendant, the court could not reasonably infer from the circumstances that the dangerous condition had existed for such a length of time as to justify charging the defendant with lack of ordinary care. (Id. at p. 831.)

Defendant presented evidence that the driver who spilled the gasoline did not tell anyone about the spill before driving away. Plaintiff presented no contrary evidence that Defendant had actual knowledge of the spill. (Even though Defendant is not required to prove Morales did not observe the spill, Defendant’s Person Most Knowledgeable, Fernanda Ocampo, testified at her deposition that the monitors in the cashier area did not show the gas pumps and showed only the customers as they faced the cashier, the car wash, and the store back area. (Reply, Exh. A, Ocampo Depo., 66:13-67:10.)) Plaintiff presented no evidence that the owner of the Second Vehicle, or someone else, notified anyone at the gas station of the spill. It is undisputed Plaintiff arrived one minute and seven seconds after the Second Vehicle left. It cannot be inferred from these circumstances that Defendant had actual or constructive knowledge of the spill, or that the dangerous condition of spilled gasoline existed for such a length of time as to justify charging Defendant with lack of ordinary care in failing to discover and remedy the condition before Plaintiff was injured.

As to Plaintiff’s allegation of a defective gas pump nozzle, Defendant also contends there is no evidence that the nozzle was actually defective or that it had notice of a defective nozzle. Defendant cites to the declaration and deposition of Ocampo, an area supervisor employed by Defendant. She oversees management of Defendant’s gas stations. She testified that the manager of the gas station does a daily inspection of the gas pump nozzles. (UMF No. 33; Ocampo Depo. at 40:5-22, 49, 21-24.) She stated that no one had notified Defendant that the pump’s nozzle was defective or had malfunctioned immediately before or after the incident. (UMF 32; Ocampo Decl., 12.) Defendant has satisfied its initial burden of showing the lack of a defect in the nozzle.

Plaintiff did not dispute these facts. Plaintiff’s response to Defendant’s Separate Statement stopped at UMF No. 27 and did not respond to UMF Nos. 32 and 33. Plaintiff argues that Defendant stated in responses to document requests that it does not have possession of the maintenance binders. (AF 41.) Defendant also contends that based on the amount of gasoline spilled “it is most likely” the pump was not properly functioning. (AF 42.) Plaintiff bases this assertion on the declaration of Brad Avrit, who states, “Based on the amount of liquid gasoline spilled at the subject area prior to the subject incident, it is most likely that the subject gasoline pump was not properly functioning.” (Avrit Decl., 11.) He states that gasoline pumps have a mechanism intended to limit the gasoline that can be discharged “during typical operation as well as during an accidently [sic] discharge.” (Ibid.) He bases his conclusion that an excessive amount of gasoline was spilled on what he saw in the surveillance video. Plaintiff argues that based on the gasoline spilling onto the ground, it can be inferred that the nozzle was defective and was defective long enough that a person exercising reasonable care would have discovered it.

Although a plaintiff “‘is entitled to all favorable inferences that may be reasonably derived from [an expert’s] declaration’ [citation], and the ‘rule [is] that . . . we liberally construe the declarations for the plaintiff’s experts [citations]” . . . “these principles in no way eliminate the need for some form of ‘reasoned explanation,’ and it remains the case that any inferences must ‘reasonably be derived from’ the declaration.” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 782.) The expert’s opinion “must include ‘a reasoned explanation connecting the factual predicates to the ultimate conclusion.’ [Citation.]” (Ibid.) Here, Plaintiff’s expert does not present the factual predicates for his conclusions about how a gas pump is supposed to operate or for his conclusion that the nozzle at issue here was defective. He does not present evidence of expertise or experience in the operation and maintenance of gas pump nozzles. He does not state the factual predicates for his conclusions about how a gas pump and nozzle are supposed to operate. He does not state how much gasoline may end up being discharged accidently even from a properly working nozzle. He does not state how much gasoline was discharged in this incident. The deficient expert declaration does not allow a reasonable inference that the nozzle was defective simply because some amount of gasoline spilled on the ground.

Plaintiff contends that she needs a continuance to obtain the maintenance records in the position of another defendant, Andeavor Logistics, and to conduct another site inspection. Plaintiff has known since November 2018, when Defendant served responses to requests for production, that Andeavor Logistics has the maintenance records. (Saleh Decl., Exh. 9.) Plaintiff has had more than a year to obtain the records and does not show that she acted diligently. Plaintiff has had years to perform a site inspection. In addition, the Court previously continued the summary judgment hearing date to allow Plaintiff to obtain the discovery, and Plaintiff does not present good cause for not diligently pursing the discovery after the last continuance.

In sum, Plaintiff did not present admissible evidence to controvert Defendant’s evidence of the lack of a defect in the pump nozzle.

Plaintiff also alleges that the floor itself constituted a dangerous condition because it was unreasonably slippery. Defendant argues it had no notice that the floor was unreasonably slippery because no one had complained about the slipperiness of the floor. Defendant relies on Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403 for the assertion that Plaintiff cannot establish Defendant had notice because “Plaintiff cannot establish that another incident similar to Plaintiff’s occurred under substantially the same circumstances as present here.” (Motion, p. 11.) Plaintiff’s description of Howard misses an important point. In Howard, the defendant’s expert testified that the slippery bathtub at issue complied with industry standards for friction. (Howard, supra, 203 Cal.App.4th at p. 433.) That fact, along with the lack of prior substantially similar accidents, compelled the conclusion that the defendant lacked notice that the bathtubs were dangerously slippery. (Id. at p. 434.)

Defendant submitted no evidence that the flooring complied with industry standards for friction. Instead, Defendant relied solely on the lack of prior complaints. Lack of complaints alone does not establish lack of constructive knowledge as a matter of law. Defendant has not shown that it made any reasonable inspection of the flooring to discover whether the flooring when wet was dangerously unsafe. A jury could conclude that Defendant did not exercise due care by not conducting an inspection of the slipperiness of the floor material, and therefore Plaintiff may be able to demonstrate constructive notice. (Ortega, supra, 26 Cal.4th at p. 1212-1213). In sum, Defendant did not satisfy its burden of showing that Plaintiff cannot establish notice.

V. CONCLUSION

In light of the foregoing, the Motion for summary judgment 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.

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