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Wilson v. J.P. Allen Co.

United States District Court, C.D. California

November 3, 2014


Attorneys for Plaintiffs: Ceola McDonald (By Telephone).

Attorneys for Defendants: Steven Rodriguez.


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Proceedings: DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (Dkt. No. 49, filed September 17, 2014)


On June 19, 2013, plaintiff Kevin Wilson filed the instant lawsuit against defendant J.P. Allen Company DBA Holiday Inn Burbank-Media Center and Does 1 through 10 in the U.S. District Court for the Southern District of California. Dkt. No. 1. On September 11, 2013, defendant specially appeared to file a motion to dismiss the case on the ground of improper venue or, in the alternative, transfer the case to the Central District of California. Dkt. No. 4. On September 26, 2013, plaintiff filed a response in which he agreed that the Central District of California was the correct venue. Dkt. No. 5. On October 15, 2013, the case was transferred to this Court. See Dkt. No, 9. On January 24, 2014, plaintiff filed the operative First Amended Complaint (" FAC" ). Dkt. No. 18. In brief, the FAC alleges that defendant's negligently failed to mark and maintain a drop in elevation in front of a hotel entrance, causing plaintiff to fall and sustain injuries. FAC ¶ ¶ 4-6.

On September 17, 2014, defendant filed a motion for summary judgment. Dkt. No. 49. Plaintiff filed an opposition on

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October 13, 2014.[1] Dkt. No. 53.[2] Defendant replied on October 20, 2014. Dkt. No. 56. The Court held a hearing on November 3, 2014. After considering the parties' arguments, the Court concludes that the motion for summary judgment should be denied for the reasons set forth below.


Unless otherwise noted, the following facts are not in dispute for purposes of this motion.[3] The alleged incident giving rise to this lawsuit occurred on February 11, 2012 near the entrance of a Holiday Inn in Burbank, California. Defendant's Undisputed Material Facts (" DUMF" ) ¶ 1; Plaintiff's Statement of Genuine Disputes (" PSGD" ) ¶ 1. Just prior to the incident, plaintiff, a flight attendant, had walked out of the hotel lobby to board an airport shuttle. DUMF ¶ 3-4; PSGD ¶ ¶ 3-4. When the alleged incident occurred, plaintiff was attempting to enter the shuttle parked adjacent to a curb located near the hotel's front entrance. DUMF ¶ 8; PSGD ¶ 8.

An MRI report dated April 10, 2012, describes plaintiff's injuries as " consistent with tears of the anterior talofibular ligament and calcaneofibular ligaments . . . with small joint effusion and subcutaneous edematous changes to the lateral joint." DUMF ¶ 39; PSGD ¶ 39. These findings are consistent with an " inversion" ankle injury. DUMF ¶ 40; PSGD ¶ 40. Plaintiff underwent right lateral ligament reconstructive surgery on March 20, 2013. DUMF ¶ 41; PSGD ¶ 41.

On March 7, 2012, an attorney representing plaintiff sent a letter to defendant stating that plaintiff " slipped on a slippery sidewalk at the hotel's entrance and fell to the ground sustaining serious injury." DUMF ¶ 34; PSGD ¶ 34. On May 21, 2012, defendant received another letter from plaintiff's attorney, stating that plaintiff had fallen because of an " unmarked rise in the walkway" at the hotel. DUMF ¶ 35; PUMF ¶ 35. In June 2014, plaintiff and NHIC hired Charles Turnbow (" Turnbow" ), a professional engineer and attorney, as a retained liability expert for this lawsuit. DUMF ¶ ¶ 27-30; PSGD ¶ ¶ 27-30. Because the hotel employs a system that automatically deletes surveillance footage after five days, there is no existing video footage of plaintiff's fall. See DUMF ¶ ¶ 66-73; PSGD ¶ ¶ 66-73.

As noted above, the FAC alleges that the curb constituted a dangerous unmarked

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drop in elevation. DUMF ¶ 24; PSGD ¶ 24. The driveway concrete is delineated from the adjacent elevated curb and sidewalk by a large diamond-scoring pattern, referred to by Turnbow as " expansion joints." DUMF ¶ ¶ 42-43; PSGD ¶ ¶ 42-43. These " expansion joints" ran in different directions on the curb and sidewalk than did the patterns on the driveway. DUMF ¶ ¶ 42-43, 50-51; PSGD ¶ ¶ 42-43, 50-51. Plaintiff does not recall whether he looked downward prior to his alleged fall. DUMF ¶ 53; PSGD ¶ 53. The curb and driveway complied with the City of Burbank's Standard Plans. DUMF ¶ ¶ 44-45; PSGD ¶ ¶ 44-45. A stationary planter was located approximately four feet from the location of the incident. DUMF ¶ 56; PSGD ¶ 56. Turnbow testified that this placement partially blocked a nearby walkway in violation of California building codes and the Americans with Disabilities Act (" ADA" ) standards. DUMF ¶ 57; PSGD ¶ 57. No evidence has been presented of any prior similar incidents on the subject property, and no other injuries attributed to the curb in question have been reported. DUMF ¶ ¶ 54, 65; PSGD ¶ 54, 65.[4]


Summary judgment is appropriate where " there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial burden of identifying relevant portions of the record that demonstrate the absence of a fact or facts necessary for one or more essential elements of each claim upon which the moving party seeks judgment. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

If the moving party meets its initial burden, the opposing party must then set out specific facts showing a genuine issue for trial in order to defeat the motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Fed.R.Civ.P. 56(c), (e). The nonmoving party must not simply rely on the pleadings and must do more than make " conclusory allegations [in] an affidavit." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990); see also Celotex, 477 U.S. at 324. Summary judgment must be granted for the moving party if the nonmoving party " fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322; see also Abromson v. Am. Pac. Corp., 114 F.3d 898, 902 (9th Cir. 1997).

In light of the facts presented by the nonmoving party, along with any undisputed facts, the Court must decide whether the moving party is entitled to judgment as a matter of law. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 631 & n.3 (9th Cir. 1987). When deciding a motion for summary judgment, " the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (citation omitted); Valley Nat'l Bank of Ariz. v. A.E. Rouse & Co., 121 F.3d 1332, 1335

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(9th Cir. 1997). Summary judgment for the moving party is proper when a rational trier of fact would not be able to find for the nonmoving party on the claims at issue. See Matsushita, 475 U.S. at 587.


A. Applicable Negligence Principles

Although the FAC does not state a cause of action, the parties agree that plaintiff's claims sound in negligence. DUMF ¶ 5; PSGD ¶ 5. To recover for negligence under California law, a plaintiff must show (1) that defendant owed plaintiff a duty of care, (2) that defendant breached that duty, (3) that the breach was the legal and proximate cause of plaintiff's injury, and (4) that plaintiff suffered damages. Paz v. California, 22 Cal.4th 550, 559, 93 Cal.Rptr.2d 703, 994 P.2d 975 (2000). " The same concepts of duty applicable to general negligence claims apply to premises liability claims." Hall v. Rockcliff Realtors, 215 Cal.App.4th 1134, 1139, 155 Cal.Rptr.3d 739 (2013). In the recent case of Howard v. Omni Hotels Mgmt. Corp., 203 Cal.App.4th 403, 421, 136 Cal.Rptr.3d 739 (2012), the California Court of Appeal discussed the negligence principles applicable to hotel operators:

Commercial property owners are not insurers of the safety of their patrons, although they owe the patrons duties " to exercise reasonable care in keeping the premises relatively safe." To exercise a degree of care that is commensurate with the risks involved, the owner must make reasonable inspections of the portions of the premises open to customers. An owner is liable for harm caused by a dangerous condition, of which the owner had actual or constructive knowledge. An injured plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it, but failed to take reasonable steps to do so. One way to carry that burden is to raise an inference that the hazardous condition existed long enough for the owner to have discovered it, if an owner exercising reasonable care would have learned of it.
Hotel proprietors have a special relationship with their guests that gives rise to a duty " to protect them against unreasonable risk of physical harm." " 'The duty in each case [as with common carriers] is only one to exercise reasonable care under the circumstances. The defendant is not liable where he neither knows nor should know of the unreasonable risk. . . .'" However, hotel guests can reasonably expect that the hotel owner will be reasonably diligent in inspecting . . . for defects, and correcting them upon discovery. . . .
The fact that an accident occurred does not give rise to a presumption that it was caused by negligence. Instead, the injured plaintiff must establish sufficient facts or circumstances that support an inference of a breach of duty.

Id. at 431-32 (internal citations omitted).

Defendant does not contest that it owed plaintiff a general duty of reasonable care, and concedes for purposes of this motion plaintiff's allegations about the factual circumstances of the hotel property and plaintiff's injuries. See Memo. Supp. MSJ at 3, 13. Defendant argues that it is nonetheless entitled to summary judgment because (1) plaintiff cannot show a breach of duty for several reasons, and (2) plaintiff cannot show causation because his own liability expert ...

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