Opinion
G044408 Super. Ct. No. 30-2008-00114177
02-06-2012
LUZ ELENA CANO, Plaintiff and Appellant, v. STAFF PRO, INC., et al., Defendants and Respondents.
Pivo, Halbreich, Martin, Wilson & Amo and Scott A. Martin for Plaintiff and Appellant. Kinkle, Rodiger and Spriggs and A. J. Pyka for Defendant and Respondent Staff Pro, Inc.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Kirk H. Nakamura, Judge. Affirmed.
Pivo, Halbreich, Martin, Wilson & Amo and Scott A. Martin for Plaintiff and Appellant.
Kinkle, Rodiger and Spriggs and A. J. Pyka for Defendant and Respondent Staff Pro, Inc.
Waters, McCluskey & Boehle and Gregg W. Brugger for Defendant and Respondent Anaheim Arena Management.
* * *
Plaintiff Luz Elena Cano, M.D., appeals from a judgment entered after the trial court granted separate summary judgment motions by defendants Anaheim Arena Management, LLC, aka Honda Center (Arena Management) and Staff Pro, Inc. (Staff Pro). Cano suffered injuries during a concert at the Honda Center arena in Anaheim when defendant Andrew Hoel fell on Cano as she sat in her seat. Cano sued Arena Management and Staff Pro, claiming they negligently allowed Hoel to pass through security and enter the arena even though he appeared grossly intoxicated and posed a danger to others.
The trial court granted the summary judgment motions because it found Arena Management and Staff Pro adequately screened concertgoers and Cano failed to produce evidence showing Hoel appeared grossly intoxicated when he passed through security. Cano contends the trial court erred because it would not infer Hoel appeared grossly intoxicated when security let him into the concert based on testimony that Hoel was intoxicated when he later fell on Cano. As explained below, the evidence does not support the inference Cano draws and we therefore affirm the judgment in Arena Management and Staff Pro's favor.
I
FACTS AND PROCEDURAL HISTORY
In April 2008, Cano and her sister attended a Bruce Springsteen concert at the Honda Center in Anaheim. Hoel also attended the concert with his wife and sat in the same section as Cano in the arena's upper level. Arena Management administers the Honda Center's operations and contracts with Staff Pro to provide supplemental security services.
Hoel was an alcoholic who drank a significant amount of alcohol every day. On the day of the concert, he began drinking rum and coke at home and continued drinking in the car while his wife drove them to the show. Hoel took one final "swig" before leaving the car to enter the Honda Center. After passing through security and entering the arena, Hoel and his wife headed to their seats. Hoel did not bring any alcohol into the arena nor did he purchase any while inside.
Hoel also suffered from cardiomyopathy (an enlarged heart) and arthritis or a similar condition in his legs that sometimes made walking difficult. Hoel's heart condition had caused him previously to lose consciousness and collapse on a few occasions. In each instance, Hoel became incontinent and urinated on himself. Hoel's leg condition also had caused him to fall several times in the past.
A member of the audience who watched Hoel as he first climbed the steep stairs to his seat observed that Hoel appeared unsteady and his face was red and bloated. This person was concerned Hoel could not make it up the steep stairs to his seat, but formed no opinion why Hoel appeared unsteady and had difficulty climbing the stairs.
During the concert, Hoel left his seat and climbed down the stairs to the bottom of his section. When he got to the bottom, Hoel realized he forgot something and began climbing the stairs back to his seat. Hoel's movements caught the eyes of several nearby concertgoers because he staggered often as he lost his balance and tried unsuccessfully to grab the handrail. These concertgoers also noticed a distinct smell of alcohol on Hoel. Part way up the stairs, Hoel fell backwards and landed on several people, including Cano.
Nearby concertgoers helped Hoel to his feet and he returned to his seat where Honda Center medical staff arrived to assist him. They smelled an odor of alcohol on him and noticed he had urinated in his pants. Security personnel and police also came to Hoel's seat and helped him to the Honda Center first aid room. Bruises and a laceration on his leg were the only injuries Hoel suffered in his fall, but as he sat in a wheelchair in the first aid room Hoel again urinated on himself. Police and medical staff also noted Hoel spoke slowly and slurred his words. Police arrested Hoel for being drunk in public because they concluded he could not care for his own safety or the safety of others, but the city attorney never filed charges. Six months after his fall, Hoel died from his heart condition.
Cano claimed she suffered numerous injuries when Hoel landed on the back of her head, including a tear in her retina and blindness in her left eye that forced her to close her medical practice. In November 2008, Cano filed this action to recover compensation for her injuries. Her operative second amended complaint alleged causes of action against Hoel for assault, battery, and negligence. Cano sued Arena Management and Staff Pro for negligence based on premise liability, negligence based on inadequate security, and negligence based on res ipsa loquitur. After learning Hoel died, Cano amended her complaint to name Hoel's wife as his successor in interest. None of the parties deposed or interviewed Hoel before he died.
Arena Management and Staff Pro filed separate summary judgment motions, arguing they did not breach any duty of care they owed Cano and did nothing to cause the injuries Cano suffered when Hoel fell on her. The trial court agreed neither Arena Management nor Staff Pro breached any duty and granted both motions. The court explained Cano failed to present evidence showing Arena Management or Staff Pro provided inadequate security or knew Hoel posed any danger to other concertgoers when he entered the arena. The trial court thereafter entered judgment in Arena Management and Staff Pro's favor and Cano timely appealed.
II
DISCUSSION
A. Relevant Summary Judgment Standards
A defendant moving for summary judgment bears the initial burden to show the plaintiff's action has no merit. (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168-169 (Teselle).) The defendant can meet that burden by either showing the plaintiff cannot establish one or more elements of his or her cause of action or there is a complete defense to the claim. (Id. at p. 169; Code Civ. Proc., § 437c, subd. (p)(2).) To meet this burden, the defendant must present evidence sufficient to show he or she is entitled to judgment as a matter of law. (Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 847-848.)
Once the defendant meets that burden, the burden shifts to the plaintiff to present evidence establishing a triable issue exists on one or more material facts. (Teselle, supra, 173 Cal.App.4th at pp. 168-169; Code Civ. Proc., § 437c, subd. (p)(2).) "In deciding whether a plaintiff has met her burden of proof, we consider both direct and circumstantial evidence, and all reasonable inferences to be drawn from both kinds of evidence, giving full consideration to the negative and affirmative inferences to be drawn from all of the evidence, including that which has been produced by the defendant." (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 483 (Leslie G.).) Responsive evidence that "gives rise to no more than mere speculation," however, is not sufficient to establish a triable issue of material fact. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)
We review a trial court's ruling on a summary judgment motion de novo. (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940.) "'A different analysis is required for our review of the trial court's . . . rulings on evidentiary objections. . . . [T]he weight of authority holds that an appellate court reviews a court's final rulings on evidentiary objections by applying an abuse of discretion standard. [Citations.]' [Citation.]" (Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal.App.4th 1326, 1335.) B. The Trial Court Properly Granted Both Summary Judgment Motions
Cano contends the trial court erred in granted the summary judgment motions because Hoel appeared "obviously intoxicated" when he passed through security screening outside the Honda Center and therefore Arena Management and Staff Pro should have prevented Hoel from entering the arena. In Cano's view, Arena Management's and Staff Pro's failure to bar Hoel from the arena breached their duty to protect Cano from reasonably anticipated wrongful conduct by other concertgoers. Arena Management and Staff Pro, however, contend they did not breach this duty because they provided adequate security personnel who individually screened each concertgoer before entering the arena and Hoel did not appear intoxicated when he passed through security screening.
Because we agree Arena Management and Staff Pro did not breach the duty Cano claims they owed, we express no opinion regarding whether Arena Management and Staff Pro actually owed that duty. Similarly, we do not reach several arguments the parties make regarding other elements of Cano's claims because our conclusion regarding the breach element is sufficient to affirm the trial court's judgment.
1. Arena Management and Staff Pro Met Their Initial Burdens by Negating the Breach of Duty Element
To meet its initial burden to negate the breach of duty element, Arena Management presented evidence describing the security they provided for the concert and the procedures security personnel used to screen all concertgoers before allowing them to enter the Honda Center. Specifically, Arena Management's evidence showed it employed at the concert 114 of its security employees and 10 of its security supervisors, 15 Anaheim Police officers, 2 Anaheim Police sergeants, 76 Staff Pro employees, 5 Staff Pro supervisors, 129 ushers, and 9 usher supervisors. Outside the arena, Arena Management and Staff Pro personnel individually searched each concertgoer with a hand held metal detector and inspected the contents of all purses and bags for prohibited items. After conducting this search, an usher would check the person's ticket before entry into the arena. During these individual encounters, Arena Management instructed security personnel to watch for any concertgoers who posed a potential danger to others or engaged in disruptive behavior, including any patrons who appeared obviously intoxicated. If security personnel spotted someone who posed a potential problem, Arena Management instructed them to call a security supervisor or police officers to address the situation.
Arena Management also presented a security expert's declaration opining that Arena Management provided appropriate security for the concert. Finally, Arena Management presented evidence showing it received no complaints or reports regarding Hoel or his conduct before he fell on Cano and that none of the security personnel observed any problem with Hoel before his fall.
The trial court overruled Cano's evidentiary objections to the absence of any reports or complaints about Hoel and the declaration of Arena Management's expert. Cano contends the trial court erred, but she does not explain how the court abused its discretion in overruling her objections and cites no authority to support her conclusion the court committed error. By failing to provide any reasoned analysis or authority Cano waived her challenges to the trial court's evidentiary rulings. (Martin v. PacifiCare of California (2011) 198 Cal.App.4th 1390, 1410-1411.) Moreover, sustaining these objections would not alter our conclusion Arena Management met its initial burden. Individually screening each concertgoer sufficiently discharged Arena Management's duty to check for obviously intoxicated concertgoers who may have posed a risk to others.
To meet its initial burden to negate the breach of duty element, Staff Pro presented deposition testimony by Hoel's wife stating he appeared "totally calm, totally normal" as he passed through security screening outside the arena and "[y]ou would never think by looking at him that he drank . . . ." Hoel's wife further testified there were no outward signs that would put someone on notice Hoel might be intoxicated as he entered the arena. She characterized Hoel as a functional alcoholic and described how he successfully interviewed for a job after drinking. Staff Pro also presented evidence similar to Arena Management's evidence describing the number of security personnel and the procedures used to screen concertgoers before allowing them to enter the arena.
We agree with the trial court that this evidence satisfied Arena Management's and Staff Pro's initial burden to negate the breach of duty element. This evidence shows Arena Management and Staff Pro took reasonable steps to individually screen each concertgoer for prohibited items and outward signs the concertgoer may pose a threat to others. The evidence also established Hoel exhibited no signs of being obviously intoxicated or a danger to others when he entered the Honda Center through Arena Management's and Staff Pro's security screening. Accordingly, the burden shifted to Cano to present evidence establishing a triable issue of material fact on whether Arena Management and Staff Pro breached it alleged duty of care.
In ruling on Arena Management's motion, the trial court refused to consider the testimony by Hoel's wife that he gave no outward indication he might be intoxicated when he entered the arena because Arena Management did not provide that evidence until its reply brief. The trial court cited this court's decision in San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 (San Diego Watercrafts), as the basis for its refusal to consider the testimony by Hoel's wife. San Diego Watercrafts reversed a summary judgment because the trial court relied on evidence the moving party did not present until the reply brief. The court explained that relying on the evidence violated the opposition's due process rights because the opposition was not fully advised of the issue and the evidence it must rebut to defeat the motion. (Ibid.)
Here, Arena Management did not present the testimony by Hoel's wife until its reply brief because the parties were unable to depose her until after Arena Management filed its motion. Nonetheless, Staff Pro's subsequent motion relied heavily on the testimony and Cano's opposition to both Arena Management's motion and Staff Pro's motion also relied heavily on testimony by Hoel's wife. The trial court heard both summary judgment motions at the same time. On the facts of this case, Cano had a full and fair opportunity to respond to the evidence. Moreover, Cano did not object to Arena Management's reliance on the testimony and thereby waived any objection. (Code Civ. Proc., § 437c, subd. (b)(5).) We review the trial court's refusal to consider this evidence on Arena Management's motion under the abuse of discretion standard, but we need not decide whether the trial court abused its discretion because other evidence Arena Management provided in its moving papers met its initial burden. We simply note this additional evidence bolstered Arena Management's showing and San Diego Watercrafts is readily distinguishable from this case.
2. Cano Failed to Establish a Triable Issue of Material Fact on the Breach of Duty Element
Cano concedes she did not present any direct evidence showing Hoel appeared obviously or grossly intoxicated when he passed through security screening and entered the Honda Center. Rather, Cano argues she presented substantial circumstantial evidence creating an inference Hoel appeared obviously intoxicated when he entered the arena. The evidence Cano presented, however, fails to support this inference and therefore Cano failed to meet her burden to establish a triable issue of fact.
Cano presented deposition testimony by her sister, other concertgoers seated near Hoel, the Honda Center medical staff, and police officers describing their observations of Hoel immediately before and after he fell. Specifically, these witnesses described Hoel as (1) having difficulty keeping his balance as he walked up and down the stairs; (2) reeking of alcohol; and (3) appearing intoxicated. The medical staff and police officers who helped Hoel after he fell also testified Hoel could not walk down the stairs without assistance and had urinated in his pants. The officers further testified they observed Hoel urinate in his pants a second time in the Honda Center first aid room and they arrested him for being intoxicated in public because he appeared unable to care for his own safety or the safety of others.
Cano acknowledges this testimony describes Hoel's appearance immediately before and after he fell, but not how he appeared when he entered the Honda Center. Nonetheless, she contends it supports an inference Hoel appeared obviously intoxicated when he entered the arena if evidence of his grossly intoxicated condition is considered with testimony by Hoel's wife stating Hoel (1) was an alcoholic who drank 1.75 liters of rum and coke daily; (2) drank at their home before leaving for the concert; (3) drank in the car while she drove them to the concert; (4) took a final "swig" in the arena parking lot; and (5) did not drink anything after entering the concert. According to Cano, if other concertgoers, the medical staff, and police thought Hoel reeked of alcohol and appeared intoxicated after he fell, and Hoel drank no further alcohol after passing through security outside the arena, then it may be inferred Hoel reeked of alcohol and appeared obviously intoxicated when he entered the Honda Center.
"'"[W]hen opposition to a motion for summary judgment is based on inferences, those inferences must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork." [Citation.]' [Citation.] . . . 'Speculation . . . is not evidence.' [Citation.]" (Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1298-1299.) "Stated otherwise, where by competent evidence a party seeking summary judgment has made a prima facie showing of entitlement thereto, that showing is in no wise controverted, much less defeated, by inferences based entirely on tortured reasoning or logic strained to the breaking point . . . ." (O'Neil v. Dake (1985) 169 Cal.App.3d 1038, 1044-1045.) "Where, as here, the plaintiff seeks to prove an essential element of her case by circumstantial evidence, she cannot recover merely by showing that the inferences she draws from those circumstances are consistent with her theory. Instead, she must show that the inferences favorable to her are more reasonable or probable than those against her." (Leslie G., supra, 43 Cal.App.4th at p. 483, original italics.)
Cano cannot survive summary judgment because the inference she asserts establishes nothing more than a possibility Hoel might have appeared grossly intoxicated when screened by security. (Leslie G., supra, 43 Cal.App.4th at p. 483 [summary judgment affirmed where plaintiff's evidence showed only a possibility defendant acted negligently].) Moreover, that possibility is not reasonably deducible from the evidence because it rests on several assumptions the evidence does not support. For example, Cano assumes Hoel drank the same amount of alcohol on the day of the concert as he typically drank, but Cano fails to present any evidence showing the amount of alcohol Hoel consumed that day. Cano also assumes Hoel exhibited the same level of intoxication when he entered the arena as he exhibited immediately before and after he fell. Cano, however, failed to present any evidence showing how much time elapsed between Hoel's last drink and his fall or how Hoel's level of intoxication at the time he fell related to his level of intoxication when he entered the arena. Courts have long recognized that a person's blood-alcohol level rises for a period of time after the person stops drinking. (See, e.g., Yordamlis v. Zolin (1992) 11 Cal.App.4th 655, 662.) Without evidence regarding how much Hoel drank before entering the concert and the amount of time that elapsed between his last drink and fall, Cano can only speculate regarding Hoel's level of intoxication when he entered the arena.
Moreover, although Hoel's difficulty navigating the stairs near his seat and the odor of alcohol on him led some concertgoers, medical staff, and police to conclude he was intoxicated when he fell, the combination of these facts do not show that security personnel should have concluded Hoel was obviously intoxicated when he entered the arena. The security screening personnel observed Hoel on a level surface outside the arena that did not provide Hoel, his balky knees, and his problematic heart the same challenges as the steep stairs on which he fell in the arena's upper level. As for the odor of alcohol, the duty Cano sought to impose on Arena Management and Staff Pro only required them to identify and exclude concertgoers who appeared obviously intoxicated or posed a danger to others, not concertgoers who smelled of alcohol. Cano does not contend Arena Management and Staff Pro were required to exclude any concertgoer who may have had an odor of alcohol or had something to drink before entering the arena.
In the face of direct evidence showing Arena Management and Staff Pro individually screened each concertgoer and Hoel's wife's testimony he did not exhibit any signs he was obviously intoxicated when he passed through security, Cano fails to create a triable issue of fact by pointing to evidence that some people concluded Hoel was intoxicated an unspecified amount of time later that evening. The trial court properly granted the summary judgment motions.
At oral argument, Cano argued Hoel's wife was biased and lacked credibility. Summary judgment, however, "'may not be denied on grounds of credibility.' [Citation.] 'If the moving party's evidence is not controverted, the court must ordinarily accept it as true for purposes of the [summary judgment] motion. In other words, the judge generally lacks discretion to deny the motion and send the case to trial simply to allow the opposing party to cross-examine the affiants or otherwise test their credibility.' [Citation]." (Trujillo v. First American Registry, Inc. (2007)
157 Cal.App.4th 628, 636.) In opposing summary judgment, Cano relied on testimony by Hoel's wife that he generally drank a certain amount on a daily basis and that he drank on the day of the concert. Cano does not challenge the credibility of the testimony that she views as beneficial to her case.
In opposition to Staff Pro's motion (but not Arena Management's), Cano also presented a declaration by a security expert who opined Staff Pro "may have" inadequately trained its personnel and Staff Pro's security was inadequate because Staff Pro provided fewer security personnel than Arena Management requested. Relying on Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 777, the trial court concluded Cano's expert declaration was based on speculation and therefore the conclusion additional security could have prevented the incident did not create a triable issue.
Cano contends the trial court erred in rejecting her expert's declaration, but provides no authority supporting her claim. It is undisputed Hoel passed through the individual security screening and his wife testified he appeared "totally calm, totally normal" as he did so. Cano fails to explain how additional security could have prevented Hoel from entering the Honda Center when he was individually screened and did not appear obviously intoxicated when he passed through security screening. As explained above, Cano's evidence does not support an inference Hoel appeared grossly intoxicated when he entered the arena. Cano's expert declaration did not create a triable issue.
3. The Doctrine of Res Ipsa Loquitur Does Not Create a Triable Issue on the Breach of Duty Element
Cano's operative complaint alleged a separate negligence cause of action based on res ipsa loquitur. Res ipsa loquitur, however, is not a cause of action. It is "an evidentiary rule for 'determining whether circumstantial evidence of negligence is sufficient.' [Citation.]" (Howe v. Seven Forty Two Co., Inc. (2010) 189 Cal.App.4th 1155, 1161 (Howe); Evid. Code, § 646.) "'The doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible.' [Citations.]"(Howe, at p. 1161.)
To invoke the doctrine, a "plaintiff has the burden to establish three conditions: '(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.' [Citations.]" (Howe, supra, 189 Cal.App.4th at p. 1161.)
In California, the Evidence Code makes res ipsa loquitur "a presumption affecting the burden of producing evidence." (Evid. Code, § 646, subd. (b); Howe, supra, 189 Cal.Ap.4th at p. 1161.) If the plaintiff establishes the foregoing conditions, a presumption arises that the defendant's negligence proximately caused the accident that injured the plaintiff. (Brown v. Poway Unified School District (1993) 4 Cal.4th 820, 825-826 (Brown);Evid. Code, § 646, subd. (c)(1).) In other words, based on the nature of the accident, the trier of fact infers the defendant acted negligently and that negligence injured the plaintiff without requiring evidence to establish these facts.
The defendant may rebut the presumption or inference by presenting evidence showing the defendant did not act negligently or that his or her negligence did not proximately cause the accident. (Brown, supra, 4 Cal.4th at p. 826; Evid. Code, § 646, subd. (c).) If the defendant makes that showing the presumption disappears and the case proceeds like any other negligence action, with the trier of fact deciding whether the evidence adequately establishes the defendant breached a duty of care owed to the plaintiff and thereby proximately caused the plaintiff's injuries. (Ibid.)
If res ipsa loquitur applies in this case, the presumption or inference it creates would create a triable issue of fact without Cano presenting evidence showing Arena Management and Staff Pro breached a duty of care and proximately caused Cano's injuries. (See, e.g., Brown, supra, 4 Cal.4th at p. 825.) The doctrine, however, does not apply here because (1) the accident could occur in the absence of someone's negligence and (2) an instrumentality in Arena Management's and Staff Pro's exclusive control did not cause the accident.
As explained above, the evidence showed Hoel had a heart condition that previously caused him to lose consciousness and collapse on several occasions. Based on her observations of Hoel at the concert and during those prior instances, Hoel's wife testified she believed Hoel fell at the concert because his heart condition caused him to lose consciousness and collapse. Thus, although someone's negligence possibly caused Hoel to fall on Cano, his medical condition also may have precipitated the fall. Res ipsa loquitur does not apply when the harm is caused by factors other than negligence. (Brown, supra, 4 Cal.4th at pp. 827-828 [res ipsa loquitur did not apply to plaintiffs slip and fall because possible causes other than negligence existed].)
The doctrine also does not apply because an instrumentality in Arena Management's and Staff Pro's exclusive control did not cause Hoel to fall on Cano. Hoel was the instrumentality involved in the fall that injured Cano, but he was not in Arena Management's or Staff Pro's exclusive control. Assuming Arena Management and Staff Pro had some degree of control over Hoel because they screened all patrons before allowing them to enter the Honda Center, Arena Management and Staff Pro did not have exclusive control over Hoel. Hoel also had some degree of control over himself and what he did once inside the arena.
Cano does not contend Arena Management and Staff Pro had exclusive control over Hoel. Instead, she argues Arena Management and Staff Pro had exclusive control over the Honda Center and the decision whether to allow Hoel to enter the arena when he appeared obviously intoxicated. This argument, however, assumes Hoel appeared obviously intoxicated when he passed through security screening. As explained above, the evidence does not support that assumption.
III
DISPOSITION
The judgment is affirmed. Staff Pro and Arena Management each shall recover their costs on appeal.
ARONSON, J. WE CONCUR:
MOORE, ACTING P. J.
FYBEL, J.