On 01/05/2018 MARION ANTHONY filed a Personal Injury - Other Personal Injury lawsuit against STOLTZ MANAGEMENT OF DELAWARE INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is STEPHEN I. GOORVITCH. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
STEPHEN I. GOORVITCH
STOLTZ MANAGEMENT OF DELAWARE INC
DOES 1 TO 50
FEDERAL BUILDING SERVICES INC
FEDERAL BUILDING SERVICES INC
ROES 1 THROUGH 20 INCLUSIVE
TALT STEVEN S.
RUBIN G. DAVID ESQ.
2/21/2019: Amendment to Complaint (Fictitious/Incorrect Name)
4/22/2019: Proof of Personal Service
5/8/2019: Stipulation to Continue Trial/FSC [and Related Motion/Discovery Dates] Personal Injury Courts Only (Department 91, 92, 93, 97)
3/2/2018: DEFENDANTS STOLTZ MANAGEMENT OF DELAWARE, INC.S AND PROMENADE, LLCS ANSWER TO PLATNTIFFS COMPLAINT
1/5/2018: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)
at 10:00 AM in Department 5, Stephen I. Goorvitch, Presiding; Final Status Conference - Not Held - Continued - StipulationRead MoreRead Less
Notice (Notice of Entry of Order re Trail Continuance); Filed by Pormenad, LLC (Defendant); Stoltz Management of Delaware Inc (Defendant)Read MoreRead Less
Summons (Cross-Complaint); Filed by Federal Building Services, Inc (Defendant)Read MoreRead Less
Cross-Complaint; Filed by Federal Building Services, Inc (Cross-Complainant)Read MoreRead Less
Answer; Filed by Federal Building Services, Inc (Defendant)Read MoreRead Less
[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District) (- FSC: 11-20-19 Trial: 12-04-19); Filed by Pormenad, LLC (Defendant); Stoltz Management of Delaware Inc (Defendant)Read MoreRead Less
Proof of Personal Service; Filed by Marion Anthony (Plaintiff)Read MoreRead Less
Amendment to Complaint (Fictitious/Incorrect Name); Filed by Marion Anthony (Plaintiff)Read MoreRead Less
DEFENDANTS STOLTZ MANAGEMENT OF DELAWARE, INC.S AND PROMENADE, LLCS ANSWER TO PLATNTIFFS COMPLAINTRead MoreRead Less
Answer; Filed by Pormenad, LLC (Defendant); Stoltz Management of Delaware Inc (Defendant)Read MoreRead Less
COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
Complaint; Filed by Marion Anthony (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC689280 Hearing Date: February 25, 2020 Dept: 32
stoltz management of delaware, inc., et al.,
Case No.: BC689280
Hearing Date: February 25, 2020
[TENTATIVE] order RE:
MOTION FOR SUMMARY JUDGMENT
Plaintiff Marion Anthony (“Plaintiff”) filed this action against Defendants Stoltz Management of Delaware, Inc. and Promenade LLC (“Defendants”), asserting causes of action for negligence and premises liability. Plaintiff alleges that she slipped and fell on the floor plate at the base of an outdoor escalator at Defendant’s shopping mall. Now, Defendants move for summary judgment, which Plaintiff opposes. The motion is denied.
“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) In ruling on the motion, “the court may not weigh the plaintiff's evidence or inferences against the defendant[’s] as though it were sitting as the trier of fact.” (Id. at 856.) However, the court “must . . . determine what any evidence or inference could show or imply to a reasonable trier of fact.” (Ibid., emphasis original.)
The Court sustains Plaintiff’s objections. The Court need not rule on Defendant’s objections. (Code Civ. Proc. § 437c(q).)
Defendants move for summary judgment on Plaintiff’s complaint for negligence and premises liability. The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Annocki
Defendants rely on Plaintiff’s responses to special interrogatories. In these responses, Plaintiff stated that she contends Defendants are liable because “water accumulated on the metal plate of the escalator . . . ,” and “[n]o warning of it being slippery or wet was provided and no safety mat was placed at the entrance of the escalator.” (Compendium of Evidence in Support of Motion for Summary Judgment, Exhibit C.)
Defendants proffer the declaration of Stoltz Management of Delaware, Inc.’s operations and marketing manager, Cortney Medak (“Medak”). Medak states that the floor plate at the base of the escalator “had a ribbed texture designed to increase the friction.” (Declaration of Cortney Medak, ¶ 7.) There are several problems with this declaration. First, the declaration states that the ribbed texture is “designed to increase the friction.” The declaration does not state that it actually does so. Putting that aside, there is insufficient foundation for Medak to testify that this ribbed texture increases friction and protects pedestrians in the rain. She is not an engineer and has no qualifications that would allow him to render that assessment. Her declaration states only that based upon her role, she has “knowledge of the outdoor escalators located at the Mall, including their design, function, and recommended usage under all weather conditions.” (Id., ¶ 4.) This is not sufficient to provide the opinion Medak provides. Finally, even if the Court considered Medak’s declaration in this regard, Defendant cites no authority for the proposition that the installation of a textured floor plate at the base of the escalator was sufficient to meet its duty of ordinary care in operating an outdoor escalator in the rain. Because Defendants fail to satisfy their burden on summary judgment, the motion is denied.
Regardless, even if Defendants had satisfied their burden, Plaintiff has proffered sufficient evidence to give rise to a triable issue. It is true that Medak testified during her deposition that when it rains, it is Defendants’ policy to place warning cones that are readily visible throughout the property. (Plaintiff’s Compendium of Evidence in Opposition to Motion for Summary Judgment, Exh. B, p. 25.) However, Medak also testified that she cannot verify that warning cones were in place on the date of Plaintiff’s accident because neither she nor any of Defendants’ property management employees were present at the mall on the day of Plaintiff’s accident. (Id., Exh. B., pp. 29-30, 37.)
Plaintiff proffers the deposition testimony of Roger Manseau (“Manseau”), the person most qualified to testify on behalf of Federal Building Services, Inc. (“Federal Building Services”), the contractor Defendants hired to provide maintenance services at the mall. Manseau testified that, on rainy days, Federal Building Services places warning cones throughout the mall. (Plaintiff’s Compendium of Evidence in Opposition to Motion for Summary Judgment, Exh. C, pp. 34-35.) But Manseau does not know whether the warning cones were actually placed by the escalator. He testified only that the cones “would” have been placed in open areas when it rained, and he “would assume” it was done on the date in question. (Id., Exh. C, p. 38.)
Moreover, Plaintiff proffers a declaration from her husband, Newton Anthony, who states that he did not see any warning cones at the mall on the date of Plaintiff’s accident. (See Declaration of Newton Anthony, ¶ 8.) Specifically, Anthony states: “I did not see any warning cones or signs in the open air area abutting the escalator. In fact, I did not see any warning cones or otherwise, any place in the Center that there may be slippery conditions.” (Ibid.) In sum, Defendants have no evidence that warning cones were actually placed by the escalator on the date of the incident, and both Plaintiff and her husband state that there were no such cones. Therefore, the Court cannot grant summary judgment in this case.
Defendants argue that the allegedly dangerous condition was open and obvious. “[I]f the danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty unless harm was foreseeable despite the obvious nature of the danger.” (Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 122, citing 6 Witkin, Summary of Cal. Law (9th ed.) Torts, § 930, p. 301.) There are two problems with this argument. First, the Court cannot conclude as a matter of law that Plaintiff necessarily knew the metal plate was slippery. Second, even though Plaintiff knew it was raining and saw that the silver plate was wet, it was foreseeable to Defendants that a patron would use the escalator and slip. Whether the danger was sufficiently open and obvious to foreclose liability against Defendants is a triable issue, so the Court cannot grant summary judgment.
CONCLUSION AND ORDER
Defendants’ motion for summary judgment is denied. Defendants shall provide notice and file proof of such with the Court.
DATED: February 25, 2020 ___________________________
Stephen I. Goorvitch
Judge of the Superior Court
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