in the court of appeal of the state of california …mono county superior ct. case no. cv 11 0051...

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

EDGAR WARD JONES,

Plaintiff/ Appellant,

vs.

WHISKEY CREEK RESTAURANTS, INC.

) ) ) ) ) ) ) ) )

Defendant/Respondent. ) _________________________ )

Case No. C075030

Mono County Superior Ct. Case No. CV 11 0051

Appeal from the Superior Court, County of Mono Hon. Stanley L. Eller, Judge

APPELLANT'S OPENING BRIEF

Christopher R. Wood #281671 Frederick G. Wood #73217

Law Offices of Frederick G. Wood 126 Old Mammoth Rd., Suite 203

P.O. Box 3837 Mammoth Lakes, CA 93546

(760) 934-5821 (760) 934-1838 (fax)

rwood@mammothlakesla w. com. Attorneys for Plaintiff/ Appellant,

EDGAR WARD JONES

CWhitney

Typewritten Text

April 29, 2014

CWhitney

Filed

CERTIFICATE OF INTERESTED ENTITES OR PERSONS

(Cal(fornia Rules ofCourt Rule 8.208)

No other person or entity has a financial or other interest in the

outcome of this proceeding.

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct.

Dated: April 21, 2014

c1:it!Hl1wooo Attorney for Appellant,

EDGAR WARD JONES

TABLE OF CONTENTS

INTRODUCTION

STATEMENT OF THE CASE 3

STANDARD OF REVIEW 5

STATEMENT OF FACTS 6

STATEMENT OF APPEALABILITY 9

ARGUMENT 9

A. BEING IN A SPECIAL RELATIONSHIP WITH 9 JONES, WHISKEY CREEK OWED JONES A LEGAL DUTY TO PROTECT HIM AGAINST THE ACTIONS OF THIRD PARTIES; THE THE INCIDENT FALLS WITHIN THE SCOPE OF THE LEGAL DUTY OWED TO JONES.

B. IN ITS FINDING THAT WHISKEY CREEK OWED 20 JONES NO DUTY, THE SUPERIOR COURT ERRED IN FAILING TO BALANCE FOREESEEABILITY AND BURDEN.

C. THE SUPERIOR COURT ERRED IN FINDING 22 GOOD CAUSE TO HEAR THE MOTION FOR SUMMARY JUDGMENT WITHIN 30 DAYS OF TRIAL.

D. THE SUPERIOR COURT ERRED IN 25 SUSTAINING AN OBJECTION TO PARAGRAPH 3 OF THE DECLARATION OF GERRY LaFRAMBOISE

E. WHISKEY CREEK CANNOT MEET ITS BURDEN 27 ESTABLISHING THAT JONES' CAUSE OF ACTION HAS NO MERIT

CONCLUSION 30

11

TABLE OF AUTHORITIES

CASES:

Ann M. v. Pac[fic Plaza Shopping Center (1993) ....................... 9, 15, 20 6 Cal.4th 666, 25 Cal.Rptr.2d 137

Castaneda v. Olsher (2007) ............................................... I5, 16, I7 4I Cal.4th 1205, 63 Cal.Rptr.3d 99

Delgado v. Traz Bar & Grill (2005) ............... I 0, 11, I2, 13, I4, I5, 21, 22 36 Cal.4th 224, 30 Cal.Rptr.3d I45

Euclid Homeowners Ass'n v. State Farm Fire and Cas. Co. (2006) ........ 28 135 Cal.App.4th 1008, 37 Cal.Rptr.3d 795

Garrett v. Howmedica Osteonics Corp. (2013) ..................................... 5 214 Cal.App.4th 173, 153 Cal.Rptr.3d. 693

Government Employees Ins. Co. v. Superior Court (2000) .................... 29 79 Cal.App.4th 95, 93 Cal.Rptr.2d 820.

Great American Ins. Companies v. Gordon Trucking, Inc. (2008) ............ 5 165 Cal.App.4th 445, 8I Cal.Rptr.3d 65.

Miller v. Department of Corrections (2005) ....................................... 5 36 Cal.4th 446, 30 Cal. Rptr.3d, 797

Leep v. American Ship Management, LLC (2005) ............................. 29 126 Cal.App.4th I 028, I 036, 24 Cal.Rptr.3d 463

Overton v. Walt Disney Co. (2006) ............................................... 28 136 Cal.App.4th 263, 269, 38 Cal.Rptr.3d 693.

Robinson v. Woods (2008) ....................................................... 5, 24 I68 Cal.App.4th 1258, 86 Cal.Rptr.3d 24I

Rowland v. Christian ( 1968) ....................................................... I4 69 Cal. 2d 108, 70 Cal.Rptr. 97

Saatzer v. Smith (1981 ) ................................................................ 11 I22 Cal.App.3d 5I2, I 78 Cal.Rptr. 68

1ll

Slawinsky v. Mocettini (1963) ...................................................... 11 217 Cal.App. 2d 192, 31 Cal.Rptr. 613

Tan v. Arne/ Management Company (2009) .............................. 9, 15, 19 170 Cal.App. 41

h I 087, 99 Cal.Rptr. 3d 754

Taylor v. Centennial Bowl, Inc., (1966) .............. ........................... 14 65 Cal.2d 114, 52 Cal.Rptr. 561

Vasquez v. Residential Investments, Inc., (2004) .................................. 15 118 Cal.App.41

h 269, 12 Cal.Rptr.3d 846

STATUTES:

Code o_[Civil Procedure§ 437c(a) ............................... ; ............... 20 Code of Civil Procedure§ 437c(p)(2) ............................................ 28 Code a_[ Civil Procedure§ 904.1(a) ................................................ 8 Evidence Code§§ 210; 350; 352; 702; 800-803 ............................ 25, 26

lV

INTRODUCTION

This is an appeal from a Summary Judgment of the Mono

County Superior Court granted in favor of Defendant/Respondent,

WHISKEY CREEK REST AU RANTS, INC. ("Whiskey Creek"), and

against Plaintiff/ Appellant, EDGAR WARD JONES, ("Jones").

Jones filed an action against Whiskey Creek for damages

alleging premises liability and negligence. On or about Saturday

night, May 30, 20 ll, Jones was patronizing Whiskey Creek, a popular

bar and restaurant located in Mammoth Lakes, California. The main

entrance to Whiskey Creek contains a wooden deck, approximately

four feet off the ground, which leads to the front entrance to the

establishment, a single door. Late that night, or early the next

morning, Jones was exiting the premises through the front door on his

way home. Unbeknownst to Jones, a large group of individuals,

presumably patrons, were loitering on the deck, engaged in what

appeared to be smoking and consumption of alcoholic beverages.

Immediately preceding his exit through the door and into the crowd of

patrons, at least one person determined to remove a grate on the

wooden deck, thereby exposing an open hole approximately two by

two feet wide, and four feet deep. When Jones exited through the front

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door, he took one step into the open void, falling four feet to the

ground, whereupon he suffered significant injuries.

There is no dispute as to what happened to Jones, and there is

no dispute as to Whiskey Creek owing a duty to Jones to protect him

through the special relationship doctrine. The dispute concerns the

scope of this duty weighing the foreseeability of this act against the

burden on Whiskey Creek to prevent it. Jones contends that the

burden was minimal, where one of three security guards on duty that

evening could have been positioned on the deck so as to prevent third

parties from committing criminal acts or where Whiskey Creek could

have locked or otherwise affixed the removable grate so as to prevent

any persons from removing it. In addition, the incident was

foreseeable in that over seven years surrounding the incident,

Whiskey Creek has been the location of 230 crimes, from vandalism

and drug/alcohol arrests, to assault and battery and even an attempted

murder. The history is such that a sergeant with the Mammoth Lakes

Police Department with over 22 years of experience testified that local

law enforcement regularly stationed officers outside the premises in

an effort to deter criminal activity.

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j I !

STATEMENT OF THE CASE

On May 27, 2011, Jones filed his complaint for damages

against Whiskey Creek (I JT 2). Defendant's Answer and Cross-

Complaint were filed on or about September 21, 20 II, and written

discovery ensued (I JT 7). Following the completion of written

discovery, Plaintiff's deposition was taken in July 17, 2012 (I JT 159).

During a Case Management Conference on November 29, 2012, in

which Whiskey Creek made no appearance, a jury trial was set to

commence June 4, 2013(1 JT 18). On or about March 7, 2013 at a

regularly scheduled hearing re: trial confirmation, Defendant

requested and received a continuance of the trial date to August 13,

2013(II JT 497).

On or about April 25, 20 13, Whiskey Creek served v1a

overnight express mail a motion for summary judgment, set for

hearing July 11, 2013 (I JT 44-47). In Jones' opposition to the motion,

timely filed on June 27, 2013, Jones alleged that the motion was

untimely noticed (II JT 340-342). On or about July 5, 2013, in

conjunction with its reply, Whiskey Creek noticed an ex parte

application to continue the hearing on summary judgment (II JT 441 ).

On or about July 11, 2013, the Court found that the motion was not

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timely served (RT 8). Although the Superior Court denied Whiskey

Creek's ex parte application to continue the hearing, the Superior

Court, on its own motion, found 'good cause' to continue the hearing

four (4) days to July 15, 2013, which was within 30 days of the

previously set trial date (RT 19-20; 26-27). On July 15, 2013, the

Court heard the motion for summary judgment (II JT 50 I). After

hearing oral argument, the Superior Court granted Whiskey Creek's

motion for summary judgment and executed a proposed order (II JT

456-460).

On or about July 24, 2013, the Clerk of the Mono County

Superior Court purportedly entered as a Judgment the order granting

summary judgment (II JT 50 I). Initially, Jones appealed this

purported Judgment in this Court (See: Third District Court of Appeal

Case No. C074424 ). However, this Court found that the appeal was

taken from an order and not a final judgment and dismissed the

appeal. As such, the parties revised and clarified the form and content

of the written order and Judgment. On September 3, 2013, the Hon.

Stanley L. Eller executed an Amended Order granting summary

judgment (II JT 463-464 ), and on September 12, 2013, Judge Eller

executed Judgment thereon (II JT 466-476). Concurrently, Judgment

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was entered by the Clerk of the Mono County Superior Court (II JT

466). On or about October 18, 2013, notice of entry of Judgment was

served on all parties (II JT 479-491), and on October 23, 2013, Jones

timely filed his notice of this appeal (II JT 492-493 ).

STANDARD OF REVIEW

On appeal from a ruling granting summary judgment, the

reviewing court applies an independent review standard. "We review

the trial court's ruling on a summary judgment motion de novo,

liberally construe the evidence in favor of the party opposing the

motion, and resolve all doubts concerning the evidence in favor of the

opponent. Garrett v. Howmedica Osteonics Corp. (20 13) 214

Cal.App.4th 173, 181, 153 Cal.Rptr.3d. 693, 698 (citing: Miller v.

Department of Corrections (2005) 36 Cal.4th 446, 460, 30

Cal.Rptr.3d, 797, 80 I).

In addition, Jones seeks review of the Superior Court's ruling to

hear the motion within 30 days of trial. The standard of review for a

trial court's rulings on notice issues is by an abuse of discretion.

Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1261, 86

Cal.Rptr.3d 241.

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Finally, Jones contests evidentiary rulings. The standard of

review for evidentiary rulings is subject to an abuse of discretion

standard. Great American Ins. Companies v. Gordon Trucking, Inc.

(2008) 165 Cal.App.4th 445, 449, 81 Cai.Rptr.3d 65.

STATEMENT OF FACTS

On or about Saturday night, May 30, 2011, Jones was

patronizing Whiskey Creek, a popular bar and restaurant located in

Mammoth Lakes, California (I JT 5). The main entrance to Whiskey

Creek contains a wooden deck, approximately four feet off the

ground, which leads to the front entrance to the establishment, a single

door (I JT 185a). Late that night, or early the next morning, Jones was

exiting the premises through the front door on his way home (II JT

355-356). Unbeknownst to Jones, a large group of individuals,

presumably patrons, were loitering on the deck engaged in what

appears to be smoking and consumption of alcoholic beverages. (I JT

5; l85a). Immediately preceding his exit through the door and into

the crowd of patrons, at least one person determined to remove a grate

on the wooden deck, thereby exposing an open hole approximately

two by two feet wide, and four feet deep. (I JT 185a). When Jones

exited through the front door, he took one step into the open void,

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I i \

!

I I I f

I

falling four feet to the ground whereupon he suffered significant

injuries. (I JT 185a).

Jones' plunge was no accident. Contrary to Whiskey Creek's

attempts to downplay what took place, Jones was a victim of a

criminal act at an establishment with a long history and wide range of

criminal activity. In the seven years surrounding the incident,

Whiskey Creek had been the scene of 230 attempted crimes, from

vandalism and drug/alcohol arrests, to assault and battery and even an

attempted murder (II JT 310-329). The history is such that a sergeant

with the Mammoth Lakes Police Department with over 22 years of

experience testified that local law enforcement regularly stationed

officers outside the premises in an effort to deter criminal activity (II

JT 31 0-329). Indeed, Whiskey Creek itself was aware of the activity,

and on the busy Saturday night when the incident took place, Whiskey

Creek had three security guards on duty. (I JT 27).· Despite there being

a large group of patrons on the wooden deck, and despite having the

means to patrol and/or otherwise supervise the deck, Whiskey Creek

chose not to do so (II JT 3 70-3 71 ). Moreover, the incident could have

been prevented in its entirety had Whiskey Creek simply installed a

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locking mechanism to secure the snow grate, for as little as $75. (II JT

335-336).

The parties do not dispute what took place, as the third party

criminal act as well as Jones' descent into the open hole are

documented by video evidence (I JT l85a). However, nearly each and

every fact surrounding the incident is disputed (II JT 354-3 77)

There is no dispute as to what happened to Jones, as the events

leading up to his injury are documented by video evidence (I JT

l85a). There is no dispute as to Whiskey Creek owing a duty to Jones

to protect him through the special relationship doctrine. The issue

presented concerns the scope of this duty weighing the foreseeability

of this act against the burden on Whiskey Creek to prevent it. Jones

contends that the burden was minimal, where one of three security

guards on duty that evening could have been positioned on the deck so

as to prevent third parties from committing criminal acts or where

Whiskey Creek could have locked or otherwise secured the removable

grate so as to prevent any persons from removing it. In addition,

Whiskey Creek should be held to heightened foreseeability due to

countless similar incidents that have occurred on the premises.

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Balancing these factors necessarily results in Whiskey Creek owing

Jones a duty to protect him against the acts of third parties.

STATEMENT OF APPEALABILITY

This is an appeal from a Summary Judgment of the Mono

County Superior Court granted in favor of Whiskey Creek and against

Jones. This appeal is authorized by the Code of Civil Procedure §

904.l(a)(l).

ARGUMENT

A. BEING IN A SPECIAL RELATIONSHIP WITH

JONES, WHISKEY CREEK OWED JONES A LEGAL DUTY TO

PROTECT HIM AGAINST THE ACTIONS OF THIRD PARTIES;

THE INCIDENT FALLS WITHIN THE SCOPE OF THE LEGAL

DUTY OWED TO JONES.

"To succeed in a negligence action, the plaintiff must show that

(I) the defendant owed the plaintiff a legal duty, (2) the defendant

breached that duty, and (3) the breach proximately or legally caused

(4) the plaintiffs damages or injuries. Tan v. Arne! Management

Company (2009) 170 Cal.App.41h I 087, 1095, 99 Cal.Rptr.3d 754.

Jones must first establish that Whiskey Creek owed him a legal

duty. The dispute in the trial court was narrowed to the issue of

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whether or not such a duty was owed. If a duty was owed, Whiskey

Creek breached this duty when it failed to protect Jones from this

danger. But for the acts and omissions of Whiskey Creek, including,

but not limited to, failure to monitor the deck that accommodated

many of the bar/nightclub patrons late on a Saturday night, and/or the

failure to install any locking mechanism on the snow grate in

question, Jones' injuries would not have occurred. It is undisputed that

Jones suffered injuries and damages.

Because the dispute has thus far been to the issue of whether or

not a duty exists, and because Whiskey Creek did not contest the

additional elements of Jones' cause of action, Jones will limit

argument on his cause of action for negligence to this element alone.

Notwithstanding, and to the extent Whiskey Creek raises and/or

claims that that any other element of the cause of action is not met,

Jones reserves the right raise such arguments in his Reply.

"A defendant may owe an affirmative duty to protect another

from the conduct of third parties if he or she has a 'special

relationship' with the other person. Courts have found such a special

relationship in cases involving the relationship between business

proprietors such as shopping centers, restaurants, and bars, and their

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tenants, patrons, or invitees." Delgado v. Traz Bar & Grill (2005) 36

Cal.4th 224, 235, 30 Cal.Rptr.3d 145 (citations omitted).

"California decisions have long recognized, under the special

relationship doctrine, that a proprietor who serves intoxicating drinks

to customers must 'exercis[ e] reasonable care to protect his patrons

from injury at the hands of fellow guests' (Saatzer v. Smith (1981)

122 Cal.App.3d 512, 518 [178 Cal.Rptr. 68} (Saatzer)), and that such

a duty "'arises ... when one or more of the following circumstances

exists: (1) A tavern keeper allowed a person on the premises who has

a known propensity for fighting; (2) the tavern keeper allowed a

person to remain on the premises whose conduct had become

obstreperous and aggressive to such a degree that the tavern keeper

knew or ought to have known he endangered others; (3) the tavern

keeper had been warned of danger from an obstreperous patron and

failed to take suitable measures for the protection of others; ( 4) the

tavern keeper failed to stop a fight as soon as possible after it started;

(5) the tavern keeper failed to provide a staff adequate to police the

premises; and (6) the tavern keeper tolerated disorderly conditions

[citations]."' (Saatzer, supra, 122 Cal.App.3d at p. 518; see also

Slawinsky v. Mocettini (1963) 217 Cal.App.2d 192, 196 [31 Cal.Rptr.

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613], and authorities cited.)" Delgado v. Traz Bar & Grill (2005) 36

Cal.4th 224, 241, 30 Cal.Rptr.3d 145.

In Delgado, plaintiff and his wife visited defendant's bar late on

a Saturday night. After being at the bar approximately an hour,

plaintiff became uncomfortable after another patron and his

companions were staring at him and decided to leave. One of two

security guards on duty noticed the interaction and asked plaintiff to

leave. Upon leaving the bar and going into the parking lot, plaintiff

was subsequently accosted by other patrons. The security guard who

saw the fight break out called 911 and upon arrival, the third party

attacker was arrested and later convicted of assault. Plaintiff initiated

suit against the defendant bar, and the jury returned a verdict finding

defendant bar negligent, that the negligence was a substantial factor in

causing the injuries, and that defendant bar was I 00% at fault.

Defendant moved for a new trial on the ground that it owed no duty to

protect plaintiff, and following the trial court's denial of such motion,

appealed. The Court of Appeal reversed judgment for plaintiff,

finding "no evidence of any prior similar criminal incident that would

have put defendant on notice that such an occutTence reasonably

might be anticipated." Delgado, supra, at 234. The matter was

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appealed to the California Supreme Court, which reversed the Court

of Appeal, finding that, "its special relationship-based duty included

an obligation to take reasonable, relatively simple, and minimally

burdensome steps to avert that danger." Delgado, supra, at 250.

The Delgado court analyzed the special relationship doctrine in

two parts: whether there is a special relationship, and once

determined, the scope of the duty. First, the court found a special

relationship applied as there was no question that "defendant, a bar

proprietor, stood in a special relationship with plaintiff, its patron and

invitee, and hence owed a duty to undertake 'reasonable steps to

secure common areas against foreseeable criminal acts of third parties

that [were] likely to occur in the absence of such precautionary

measures." (citations omitted). Delgado, supra, at 244. Second, the

court addressed a tangential element of burdensome measures in

whether the defendant was legally required undertake a special

relationship based duty to provide a guard or guards or other similarly

burdensome measures. It found that plaintiff must demonstrate

'heightened foreseeability' in the form prior similar criminal

incidents; however, "heightened foreseeability is satisfied by a

showing of prior similar criminal incidents (or other indications of a

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reasonable foreseeable risk of violent criminal assaults in that

location) and does not require a showing of prior nearly identical

criminal incidents." Delgado, supra, at 245 (citations omitted). Third,

the court determined that, irrespective ·of there being a special

relationship based duty to provide guards or other burdensome

measures, that there may, nonetheless, still be a special relationship-

based duty to patrons to take reasonable, relatively simple, and

minimally burdensome measures, and to this end, the court applied the

seminal Rowland factors (Rowland v. Christian ( 1968) 69 Cal. 2d

108, 113,70 Cal.Rptr 97, 101. 1

In analyzing the facts at issue in this matter, under the first part

of the special relationship doctrine, it is undisputed that Jones was a

patron and otherwise an invitee of Whiskey Creek, a

restaurant/bar/nightclub on May 30, 2009. As this relationship applies,

a "proprietor has a duty 'to take affirmative action to control the

wrongful acts of third persons which threaten invitees."' Delgado,

supra, at 244 (citing: Taylor v. Centennial Bowl, Inc., (1966) 65

Cal.2d 114, 121, 52 Cal.Rptr. 561). As such, it is undisputed that

1 It is undisputed that the Rowland factors apply. Notwithstanding, and as discussed herein, the main factors in a premises liability cause of action with respect to the element of duty are foreseeability and burden to defendant. For this reason, such factors will be referred to by reference only.

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Whiskey Creek owed Jones a legal duty. The issue therefore relates to

the scope of such duty.

"Our Supreme Court has clearly articulated 'the scope of a

landowner's duty to provide protection from foreseeable third party

[criminal acts] . . . . [It] is determined in part by balancing the

foreseeability of the harm against the burden of the duty to be

imposed. 'In cases where the burden of preventing future harm is

great, a high degree of foreseeability may be required. On the other

hand, in cases where there are strong policy reasons for preventing the

harm, or the harm can be prevented by simple means, a lesser degree

of foreseeability may be required."' Tan v. Arne! Management

Company (2009) 170 Cal.App.4th 1087, 1095, 99 Cal.Rptr.3d 754

(citing: Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4rh 666,

678-679, 25 Cal.Rptr.2d 13 7; additional internal citations omitted).

This analysis was affirmed by the Delgado Court, described as

a "sliding-scale balancing formula." Castaneda v. Olsher (2007) 41

Cal.4th 1205, 1213-1214, 69 Cal.Rptr.3d 145 (citing Delgado, supra,

at 243 ). It follows that the analytical approach essentially consists of

three elements: '"First, the court must determine the specific measures

the plaintiff asserts the defendant should have taken to prevent the

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harm. This frames the issue for the court's determination by defining

the scope of the duty under consideration. Second, the court must

analyze how financially and socially burdensome these proposed

measures would be to a landlord, which measures could range from

minimally burdensome to significantly burdensome under the facts of

the case. Third, the court must identify the nature. of the third party

conduct that the plaintiff claims could have been prevented had the

landlord taken the proposed measures, and assess how foreseeable (on

a continuum from a mere possibility to a reasonable probability) it

was that this conduct would occur. Once the burden and foreseeability

have been independently assessed, they can be compared in

determining the scope of the duty the court imposes on a given

defendant. The more certain the likelihood of harm, the higher the

burden a court will impose on a landlord to prevent it; the less

foreseeable the harm, the lower the burden a court will place on a

landlord."' Castaneda v. Olsher (2007) 41 Cal.4rh 1205, 1214, 69

Cal.Rptr.3d 145 (citing Vasquez v. Residential Investments, Inc.,

(2004) 118 Cal.App.4th 269, 285, 12 Cal.Rptr.3d 846, footnotes

omitted). "Again, other Rowland factors may come into play in a

given case, but the balance of burdens and foreseeability is generally

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primary to the analysis." !d.

In applying the oft cited authority, the scope of the duty is

balanced by what measures a plaintiff alleges that the defendant

should have taken; how burdensome such action would be; and how ' ~,

foreseeable the conduct giving rise to the incident may have been.

Here, Jones alleges that two separate actions, if taken by Whiskey

Creek would have prevented Jones' injuries and averted the danger.

Whiskey Creek could have assigned any one of the three security

guards already on duty to monitor the deck, and additionally and/or

alternatively, Whiskey Creek could have installed a locking

mechanism on the snow grate to adequately secure it.

The second prong assesses the burden imposed on a defendant.

On what Whiskey Creek claims was a slow night, in the late hours of

May 30, 2009, or the early hours of May 31, 2009, there were at least

20 people on the deck of Whiskey Creek. There were three guards on

duty that night. With a capacity of 192 persons upstairs, and given that

it was a slow night, a large percentage of patrons frequenting Whiskey

Creek on the night in question were actually on the deck. It follows

that placing at least one of those three security guards on the deck of

Whiskey Creek would not just have been minimally burdensome, but

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altogether responsible. Protecting against the ongomg vandalism,

fights, and other criminal activity that regularly occurs on the steps of

Whiskey Creek is only one minimally burdensome way in which

Whiskey Creek could have prevented and averted the danger to Jones.

Simply installing a locking mechanism, at a potential cost of just $75,

would have wholly eliminated the danger posed to its patrons.

Third, the element of foreseeability of the incident itself must

be assessed. This is an establishment that has seen over 230 reported

criminal offenses in the past ten years, including, but not limited to,

assault, battery, bar fights, burglary, disorderly conduct, grand theft,

vandalism, and narcotics violations. And these were just the incidents

in which a criminal report was filed and do not include those that went

unreported. The police department regularly stationed officers in the

parking lot of Whiskey Creek anticipating such activity, whether it be

vandalism, fighting or otherwise. The evidence speaks for itself. Even

if Jones were held to a heightened standard, he is not required to show

identical incidents but only similar criminal incidents, and here, the

records is replete with similar criminal incidents of assault, battery

and vandalism, a patte1n of conduct which inherently relates to the

criminal acts of the Whiskey Creek's patrons.

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"Perfect identity of prior crimes to the attack on a plaintiff is

not necessary. Under the Supreme Court's 'sliding-scale balancing

formula,' heightened foreseeability is required to impose a high

burden whereas some showing of a 'lesser degree of foreseeability' is

sufficient where a minimal burden is sought to be imposed on the

defendants. Foreseeability lies on a 'continuum from a mere

possibility to a reasonable probability.' Because plaintiffs have only

asked for relatively minimal security measures - ones already taken

by defendants in another portion of the property - the degree of

foreseeability required here is not especially high. As a matter of law,

therefore, the three prior incidents cited are sufficiently similar to

make the assault on Tan foreseeable and to place a duty of care on

defendants. Tan v. Arnel Management Company (2009) 170

Cal.App.4th I 087, 1101, 99 Cal.Rptr.3d 754.

Accordingly, Whiskey Creek clearly owed a duty, to which the

burden to Whiskey Creek was low and where the criminal acts

resulting in Jones' injuries were foreseeable. Evidence of over 230

prior reported criminal incidents concerning and on the subject

premises are before the Court, as well as the declarations of witnesses

who have seen such acts. These similar incidents cause the conduct

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leading to Jones' injuries to be sufficiently foreseeable to establish a

duty of care.

As the non-moving party in a summary judgment motion 1s

entitled to every reasonable inference from the evidence, the Court

must find as a matter of law that Jones was owed a legal duty of care

by Whiskey Creek.

B. IN ITS FINDING THAT WHISKEY CREEK OWED

JONES NO DUTY, THE SUPERIOR COURT ERRED IN FAILING

TO BALANCE FORESEEABILITY AND BURDEN.

The Superior Court cited Ann M. v. Pacific Plaza Shopping

Center ( 1993) 6 Cal. 4th 666 for the proposition that 'forseeability is a

crucial factor in determining the existence of a duty,' and that

'business proprietors should not become the insurances of public

safety in this state." (II JT 450-451; II JT 470-472). In its findings, the

Superior Court concluded that because Jones fell within ten seconds

of the removal of the snow grate, because no employee of Whiskey

Creek saw the removal of the snow grate, and because there was no

evidence that the snow grate had previously been removed, such

action was not sufficiently foreseeable to impose a duty of Whiskey

Creek.

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The application of the Superior Court's findings is incomplete.

The Superior Court must not only independently assess the

foreseeability factor, but also compare it to the burden imposed on the

defendant. Jones contends that the burden on Whiskey Creek was

minimal. Despite a large percentage of Whiskey Creek's patrons

loitering on the deck, and despite having three security guards on

duty, Whiskey Creek did not station any security guard or other

employee on the deck. Installing a presence would have deterred the

third-party criminal acts and doing so would cause no additional

burden on Whiskey Creek. Moreover, the snow grate itself could

easily have been affixed or otherwise locked so as to prevent any

unauthorized persons from removing the snow grate so as to expose a

dangerous condition. The evidence was disputed as to the grate and its

mobility, and whether or not "better" grates exist (II JT 354-377).

In addition, and independent of independently assessing the

'burden' element, the Court must independently assess the

foreseeability of the incident. In so doing, there may be heightened

foreseeability where there is evidence of prior similar incidents (and

not necessarily identical incidents). Delgado, supra, at 245 (citations

omitted). The Superior Court reasoned that because no direct

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evidence was presented that the snow grate had been removed before,

that the action was not foreseeable. However, the standard does not

require identical acts, but rather similar incidents to establish a

heightened foreseeability. Delgado, supra, at 245 (citations omitted).

Here, the evidence presented, objections to which were overruled,

establishes that Whiskey Creek had been the scene of numerous

reports of burglary, theft, assault, battery, and vandalism, all of which

are sufficiently similar to the conduct at issue in this proceeding.

Because similar incidents had previously occurred, Whiskey Creek

should be held to the standard of 'heightened foreseeeability.'

C. THE SUPERIOR COURT ERRED IN FINDING

'GOOD CAUSE' TO HEAR THE MOTION FOR SUMMARY

JUDGMENT WITHIN 30 DAYS OF TRIAL.

"The motion shall be heard no later than 30 days before the date

of trial, unless the court for good cause orders otherwise" Code of

Civil Procedure§ 437c(a).

Whiskey Creek failed to timely notice the motion for summary

judgment. As a result, on July 5, 2013, six days prior to the noticed

hearing date of July 11, 2013, Whiskey Creek noticed an ex parte

application to continue the hearing on the motion. The issue presented

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was that any continuance would require the motion to be heard within

30 days of the August 13, 2013 trial date. Whiskey Creek's

application was denied (RT 26-27); however, the Court found 'good

cause' to have the motion heard within 30 days of trial, "based on the

fact that the discovery was really ongoing right up through April, I

recall, with fairly recent developments, as well as recent declarations

that were filed by both parties, albeit most of those are subject to some

type of objections that may be valid." (RT 19-20).

As argued by Jones at the time of the original hearing (RT 13-

17), Whiskey Creek was dilatory in bringing its motion. Originally,

the trial date was set for June 4, 2013. Whiskey Creek obtained a

continuance of the trial date to August 13, 2013 during a Case

Management Conference on March 7, 2013. Whiskey Creek then

belatedly noticed its motion on April 25, 2013. Whiskey Creek argued

that discovery had been ongoing. However, Whiskey Creek's own

discovery had long since been completed, as its written discovery

concluded in April, 2012 and its only oral discovery occurred in July

2013. The discovery that was termed 'ongoing' consisted of Jones'

discovery conducted in advance of trial. Theoretically, Whiskey Creek

itself had long since completed its own discovery, and could have

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APPELLANT'S OPENTNG BRIEF

brought the motion any time after July, 2012. That the Superior Court

found discovery ongoing was not applicable to Whiskey Creek's

efforts and should not constitute good cause.

The Superior Court further found that recent declarations were

filed by both parties. The declarations referred to by the Superior

Court related to the motion itself, in support of and in opposition to it.

It is unclear how the submission of evidence related to the summary

judgment motion would constitute good cause to hear the matter

within 30 days of trial.

Moreover, the Superior Court did not accept Jones' arguments

that the motion should not go forward because of necessary time

required for preparation of pre-trial submissions, as well as

participation in a mandatory settlement conference, which was set for

July 18, 2013 and for which statements had been filed by both parties.

Finally, because the motion was noticed untimely (RT 8), Jones

had insufficient time to oppose the motion. Where notice is untimely,

"the opposing party faces a difficult question in deciding whether to

discuss the merits at all or to what extent." Robinson v. Woods (2008)

168 Cal.App.4th 1258, 1267, 86 Cal.Rptr.3d 241. Jones did decide to

address the merits, albeit under a claim of prejudice (I JT 192).

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Regardless, the damage was done, as the opposition was due 14 days

prior to the noticed hearing, even if untimely.

As such, there must be good cause for a motion for summary

judgment to be heard within 30 days of trial. Jones contends that good

cause did not exist. Whiskey Creek should not benefit, nor should

Jones be punished, by its failure to notice the motion sufficiently in

advance of trial when its own entire discovery had long since been

completed.

D. THE SUPERIOR COURT ERRED IN SUSTAINING

AN OBJECTION TO PARAGRAPH 3 OF THE DECLARATION

OF GERRY LaFRAMBOISE.

The Court initially issued tentative rulings on the parties'

respective objections to evidence. Rulings on written objections are

set forth in Exhibit "A" of the Judgment (II JT 474-475) and rulings

on oral objections were made on the record (RT 98-99).

Specific to the declaration of Gerry LaFramboise, Whiskey

Creek objected to the entirety of paragraph 3 pursuant to Evidence

Code §§ 210; 350; 352; 702; 800-803 (II JT 428-430). The Superior

Court sustained the objection, citing Evidence Code§§ 350; 352; 800-

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803 (II JT 475). Jones contends that the Superior Court's ruling

sustaining Whiskey Creek's objection was in error.

Whiskey Creek did not object to paragraph(s) I & 2 of the

declaration of Gerry LaFramboise which established that he was a

licensed contractor with thirty years of experience in the Mammoth

Lakes area and that he was specifically familiar with the design and

construction of snow grates (II JT 331; II JT 428-430). Such evidence

sufficiently forms the foundation for his expert opinion.

Second, Mr. LaFramboise was properly designated as an expert

(RT 33-34), and thereby is permitted to offer his opinion based upon

his special knowledge, skill, experience and certification. As such, the

objections pursuant to Evidence Code §§ 800-803 should have been

overruled.

Regarding the relevance of the evidence presented in paragraph

3 of Mr. LaFramboise's declaration, his opinion was limited to the

burden of installing a locking mechanism to a snow grate, and

estimated the approximate cost. Whiskey Creek argued that this is not

relevant, and that the probative value is outweighed by a danger of

undue prejudice, confusing the issues or misleading the jury because

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the evidence is silent on industry standards and does not address

whether it is necessary or desirable.

The declaration was offered for the specific purpose of

addressing the burden of installing a locking mechanism and nothing

more. If Whiskey Creek believed that other factors should be

considered, Whiskey Creek can and should obtain expert evidence on

that point. For the purposes of a summary judgment proceeding, the

evidence that a locking mechanism can be installed at a minimal cost

is directly relevant to the burden element in determining the scope of

Whiskey Creek's duty to Jones. The Court will in tum give

appropriate weight to that evidence as presented.

Whiskey Creek's concerns may be presented at the time of trial

prior to a jury hearing such evidence. For purposes of a summary

judgment motion, the expert evidence was properly before the Court,

relevant to the issue of duty, and there was no danger of undue

prejudice.

E. WHISKEY CREEK CANNOT MEET ITS BURDEN

ESTABLISHING THAT JONES' CAUSE OF ACTION HAS NO

MERIT.

"A defendant or cross-defendant has met his or her burden of

-27-


showing that a cause of action has no merit if that party has shown

that one or more elements ofthe cause of action, even if not separately

pleaded, cannot be established, or that there is a complete defense to

that cause of action. Once the defendant or cross-defendant has met

that burden, the burden shifts to the plaintiff or cross-complainant to

show that a triable issue of one or more material facts exist as to that

cause of action or a defense thereto." Code of Civil Procedure §

437c(p)(2).

"As to each claim as framed by the complaint, the defendant

must present facts to negate an essential element or to establish a

defense. Only then will the burden shift to the plaintiff to demonstrate

the existence of a triable, material issue of fact." Overton v. Walt

Disney Co. (2006) 136 Cal.App.4th 263, 269, 38 Cal.Rptr.3d 693.

"The moving party bears the burden of establishing, by declarations

and evidence, a complete defense to plaintiffs action or the absence of

an essential element of plaintiffs case." Euclid Homeowners Ass'n v.

State Farm Fire and Cas. Co. (2006) 13 5 Cal.App.4th 1008, l 017, 3 7

Cal.Rptr.3d 795. "The evidence and affidavits of the moving party are

construed strictly, while those of the opponent are liberally read."

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Government Employees Ins. Co. v. Superior Court (2000) 79

Cal.App.4th 95, I 00, 93 Cal.Rptr.2d 820.

Here, Whiskey Creek's only defense is that it owed no duty,

claiming that the third party conduct does not fall. within the scope of

its duty to patrons under the special relationship doctrine. Because

Whiskey Creek must establish that the duty element in the negligence

cause of action is absent, and because the evidence, when construed

liberally in favor of Jones and strictly against Whiskey Creek,

establishes a history of similar incidents giving rise to heightened

foreseeability balanced with the minimal burden imposed on Whiskey

Creek, the matter cannot be decided on summary judgment.

"Summary judgment is a drastic procedure ... and should be

used cautiously so that it is not a substitute for a trial on the merits as

a means of determining the facts." Leep v. American Ship

Management, LLC. (2005) 126 Cal.App.4th 1028, 1036, 24

Cal.Rptr.3d 463. Jones has made a sufficient showing to withstand the

summary attacks on his cause of action, and the matter should proceed

to trial for a determination of liability by the trier of fact.

-29-


CONCLUSION

Whiskey Creek is a bar that serves alcohol to its patrons and

thereby is subject to a special relationship with such invitees. On May

30 or May 31, 2009, some of its patrons maliciously removed a snow

grate where an unaware Jones took one step out of the door and fell

four feet, suffering injuries. Whiskey Creek has been subject to prior

similar incidents, which should impose a heightened foreseeability of

this conduct occurring on a busy Saturday night. Irrespective, the

burden to deter and prevent this conduct was minimal, by simply

placing one of its three security guards on the deck and/or installing a

locking mechanism on the removable snow grate at a minimal cost.

These facts, interpreted liberally in favor of Jones and strictly

against Whiskey Creek, should be sufficient for Jones to prevail in

summary judgment proceedings and allow this matter to be decided

by a jury of Jones' peers.

Jones respectfully requests that the mling of the Superior Court

be reversed, that Judgment be vacated, and that the case be remanded

for trial.

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Respectfully submitted,

Dated: April 21, 20 14

Attorney for Appellant, EDGAR WARD JONES

CERTIFICATE RE: NUMBER OF WORDS

I, CHRISTOPHER R. WOOD, certify that the number of words

in Appellant's Opening Brief is 6074. \' l}

Dated: April21, 2014 ~ ::\" CHRIST PHER R. WOOD

-31-

Attorney for Appellant, EDGAR WARD JONES


in the court of appeal of the state of california …mono county superior ct. case no. cv 11 0051...

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