Harris vs. Shops at Mission Viejo, LLC

fees.”).)

However, the Court finds Defendants’ motion unnecessary given that Plaintiff’s request in the First Amended Complaint is expressly conditioned on whether the law allows for the recovery of attorney fees. At this time, given Plaintiff’s self-represented status, he would not be able to recover attorney fees. Plaintiff’s prayer for relief as currently pled does not change the analysis.

Plaintiff is ordered to give notice.

107 2023-01351239 1. Motion for Summary Judgment and/or Adjudication 2. Motion for Summary Judgment and/or Adjudication Harris vs. Shops at Mission Viejo, LLC (1) MOTION FOR SUMMARY JUDGMENT

Defendant Welltower Mission Viejo Medical Center JV, LLC’s (“Welltower”) motion for summary judgment as to Plaintiff Gina Harris’ First Amended Complaint (“FAC”) is denied.

“[F]rom commencement to conclusion, the 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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing 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).) The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)

Defendant Welltower moves for summary judgment as to Plaintiff’s First Amended Complaint asserting negligence, premises liability and products liability(negligence) claims against Welltower.

The elements of negligence are: “(1) a legal duty to use due care; (2) a breach of such legal duty; [and] (3) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

The elements of premises liability are: (1) Defendant owned/leased/occupied/controlled the property, (2) Defendant was negligent in the use or maintenance of the property, (3) Cross-Complainant was harmed, and (4) Defendant’s negligence was a substantial factor in causing Cross-Complainant’s harm. (CACI 1000; Hall v. Aurora Loan Services, LLC (2013) 215 Cal.App.4th 1134, 1139. (“The same concepts of duty applicable to general negligence claims apply to premises liability claims.”).) “The existence and scope of duty are legal questions for the court.” (Annocki v.

Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 36 [citing Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477].) “Liability founded upon a claim of negligence cannot exist unless a duty of care is owed by the alleged wrongdoer to the person injured or to the class of which the injured person is a member. [Citations.]” (Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal.App.3d 1142, 1145 [citing Gomez v. Ticor (1983) 145 Cal.App.3d 622, 627.)

Defendant’s moving papers are based on the lease agreement between it and Mission

Hospital. Defendant contends that the lease gives control of the leased premises to the Hospital and obligates the Hospital to maintain and repair the premises. (UMF 10, 11; See Lease, Section 7).

Plaintiff’s accident occurred within the premises leased and controlled by her employer. (UMF No. 12). Defendant states that at the time of Plaintiff’s incident, it did not have control over and did not have maintenance duties over the premises where Plaintiff's incident occurred. Rather, Plaintiff’s employer did. (UMF No. 13). The window blinds that Plaintiff claims caused her alleged injuries were located within the premises of her employer. (UMF No. 14).

Defendant thus contends that it owed no duty of care to Plaintiff because it did not control the subject premises, nor was it responsible for the maintenance or repair of the window blinds.

Defendant does not meet its burden of proof in moving for summary judgment. There is more to establishing the duty element of Plaintiff’s negligence and premises liability claims than showing control or an undertaking to maintain/repair.

“A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134 [emphasis added]; see also Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 725–726 (“premises liability is based on ownership, possession or control.”).)

Defendant’s own cited authorities somewhat undercut its arguments. (See Gray v. America West Airlines, Inc., (1989) 209 Cal.App.3d 76, 81 (“[i]n premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition.”); Preston v. Goldman (1986) 42 Cal.3d 108, 119 (“we have continued to treat ownership and control as a fundamental requirement for ascribing liability.”).)

Defendant owns the property. Ownership is one way to support a duty of care. (See Civ. Code, § 1714(a) (“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person...”).)

Defendant does not address this in its moving papers or provide evidence to establish that Plaintiff cannot somehow prove Defendant was negligent in the ownership or management of the property, e.g., that Defendant did not install, approve, inspect, own the window shade assembly.

Indeed, Subsection 7(b) of the Lease, entitled “Landlord Obligations,” provides that “Welltower remains responsible for repairs and replacements involving the foundation, structural elements of the premises, and “all other components of the Landlord Work,” where such repairs are required as a result of defects in the initial construction performed by Landlord or its agents. (Plaintiff’s AMF 9.)

In reply, Defendant submits additional evidence, seeming to recognize that its moving papers are deficient. (“Moreover, any claimed deficiency in Welltower's original evidentiary showing is cured by the supplemental evidence submitted herewith.” (Reply at pg. 3:12-13).) Defendant states that it “may submit additional evidence in reply to address

gaps identified by the opposition.” (Reply at 3:13-14.)

Defendant is wrong.

Code Civ. Proc., § 437c(b)(4) is very clear: “The reply shall not include any new evidentiary matter, additional material facts, or separate statement submitted with the reply and not presented in the moving papers or opposing papers.”

Welltower additionally argues in its Reply that Plaintiff’s claims are barred by the workers compensation exclusivity doctrine. Not only did Welltower fail to argue this in its moving papers, but again, Defendant is wrong.

The workers compensation exclusivity rule applies to shield Plaintiff’s employer – Mission Hospital – from liability to Plaintiff. It does not apply to third parties like Welltower in this situation. (See Soil Engineering Construction, Inc. v. Sup. Ct. (1982) 136 Cal.App.3d 329, 332 (“The superior court may not entertain an action for damages against the employer” when workers’ compensation law applies) [emphasis added].)

Accordingly, because Welltower fails to meet its burden in moving for summary judgment, the motion is denied. There are triable issues of material fact as to whether Welltower owed a duty to Plaintiff and breached that duty.

Plaintiff shall give notice.

(2) MOTION FOR SUMMARY JUDGMENT

Cross-Defendant Mission Hospital Regional Medical Center’s (“Mission”) motion for summary judgment as to Cross-Complainant Welltower Mission Viejo Medical Center JV, LLC’s (“Welltower”) First Amended Cross-Complaint (“FACC”) is denied.

Mission moves for summary judgment as to Welltower’s First Amended Cross-Complaint which states causes of action for (1) implied indemnity, (2) express indemnity, (3) contribution, and (4) declaratory relief. (ROA 104.)

Mission fails to address the express indemnity cause of action in its moving papers.

Mission’s Lease agreement with Welltower provides:

Tenant will hold harmless and indemnify and defend Landlord [...] against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees [...], arising out of any [...] claims and losses of third parties for property damage, bodily injury, illness, death, and/or personal injury occurring on or about the Premises, or alleged to be caused in whole or in part by Tenant's operations at the Premises.

(FACC, ¶ 11.)

“In an express indemnity agreement, the parties may agree to results which would not occur in the absence of an express agreement for reasons other than equally or “fairly” apportioning loss.” (Smoketree-Lake Murray, Ltd. v. Mills Concrete Construction Co. (1991) 234 Cal.App.3d 1724, 1737.)

“Express indemnity generally is not subject to equitable considerations or a joint legal obligation to the injured party; rather, it is enforced in accordance with the terms of the contracting parties' agreement... [i]In this sense, express indemnity allows contracting parties ‘great freedom to allocate [indemnification] responsibilities as they see fit,’ and to agree to ‘protections beyond those afforded by the doctrines of implied or equitable indemnity.’” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1158 [internal citations omitted].)

Mission argues that Welltower is not liable to Plaintiff, and also that Mission is not liable to Plaintiff (due to the workers’ compensation exclusivity doctrine).

However, Welltower’s claim for express indemnity is not conditioned upon Mission (or Welltower) ultimately being found liable.

Because of this, the motion for summary judgment is denied as there is a triable issue of fact concerning the application of the express indemnity agreement between the parties.

Cross-Complainant Welltower Mission Viejo Medical Center JV, LLC shall give notice.

108 2023-01320118 1. Motion for Sanctions 2. Motion to Disqualify Attorney of Record West vs. Zacky No tentative ruling issued.

109 2025-01534663 1. Motion to Quash Service of Summons 2. Case Management Conference Beyene vs. Pavia Specially-appearing defendant Sigma Pi Fraternity International, Inc.’s (“SPFI”) Motion to Quash Service of Summons and Compliant is granted. Plaintiffs’ unopposed request for judicial notice is granted.

The Court notes that the hearing on this motion was continued to allow Plaintiffs an opportunity to conduct jurisdictional discovery and to provide the parties with an opportunity to file supplemental briefing. (ROA 70.) The Court, having taken into account the original briefing, the supplemental briefing, and the evidence presented therewith, finds that the motion should be granted.

This action arises from the tragic death of Simon Daniel. His mother brings this action for wrongful death and survival on behalf of Daniel’s estate and on her own behalf. (ROA 10.) Daniel is alleged to have “died as a result of a hazing incident on May 17, 2025,” during which time he was a “resident of the State of California.” (FAC at ¶ 5.) Daniel is alleged to have boarded a boat, while at Lake Havasu in Arizona, with other members of CSUF’s Sigma Pi Fraternity, Epsilon Nu Chapter. Daniel was allegedly prevented from re-entering the boat “as a part of a hazing ritual,” which forced him to “stay in the water for an unreasonable amount of time,” and resulted in his drowning and death. (FAC at ¶¶ 19-25.)

SPFI is alleged to be the national organization of which Sigma Pi was a local chapter, which “controls and monitors the day-to-day activities of its local chapter, Sigma Pi.” (FAC at ¶¶ 20-21.) Defendants are alleged to have “directed, encouraged, authorized, ratified, and/or contributed to the hazing that occurred on the day of the incident,” and to have “negligently organized, managed, supervised, advertised, and trained in connection with the boat trip which resulted in the death of” Daniel. (FAC at ¶¶ 26-27.)

Presently, SPFI specially appears and moves under CCP sections 410.10 and 418.10(a)(1)