Case Number: BC545516??? Hearing Date: July 21, 2016??? Dept: 91
Motion for Summary Judgment/Adjudication by Defendants, Live Nation Worldwide, Inc. and CH Palladium, LLC, filed on 10/7/15 is DENIED. Defendants have not established that they are entitled to summary judgment or adjudication of causes of action based on the material facts proffered, which are not established by admissible evidence or otherwise remain in dispute. Cal. Code Civ. Proc. ? 437c(p)(2).
The Second Amended Complaint alleges that on 11/7/13, Plaintiff, Aaron Rubin, fell over a railing or guard rail attached to a second floor balcony area at the Hollywood Palladium. Plaintiff alleges that the railing did not meet minimum safety requirements and constituted a dangerous and defective condition. Defendants served alcohol on the second floor balcony, which allegedly made it more likely that inebriated guests would fall over the inadequate railing. Plaintiff, Ilan Rubin, suffered emotional distress from seeing his brother fall. Plaintiff, Anya Rubin, the wife of Aaron Rubin, and suffered loss of consortium. Plaintiffs allege claims against both Defendants for:
1. Negligence
2. Premises Liability
3. Negligent infliction of emotional distress
4. Loss of consortium (Plaintiff Anya Rubin)
Plaintiff?s objections to the Declaration of Ned Wolfe
#1. Sustain. Irrelevant. The 1943 Building Code is irrelevant. Mr. Wolfe admits a building owner is required to bring the building up to current building code requirements where there is new construction or substantial remodeling. The remodel occurred on 4/30/08. UF 2.
#2. Sustain. Improper expert opinion, lacks foundation. . Mr. Wolfe has not adequately qualified himself as a witness. Mr. Wolfe does not explain his skill, training and expertise. He has not attached a C.V. He says he is a professional engineer in mechanical design and ?safety engineering analysis,? without elaboration. He does not state whether his ?safety engineering? experience has ever concerned building safety or specifically guard rails safety, or generally theaters.
#3. Overrule. (Experts can rely on hearsay, so long as it is of a type that would normally be relied on in rendering that opinion)
#4. Sustain. Opinion lacks foundation, improper expert opinion. Expert is not qualified.
#5, 6. Sustain. Irrelevant. 1943 and 2007 Building Code regulations are not applicable.
#7 and 8. Overrule.
Adjudication of Issues 1, 6, 13, and 18 is DENIED. Defendants rely on the expert declaration of Ned Wolfe, for his opinion that the railing at issue complied with the applicable 2007 California Building Code. Plaintiffs? objection to his declaration thereto (#2) is SUSTAINED, as Mr. Wolfe?s declaration does not state sufficient facts to establish he is qualified.
The declaration must contain sufficient facts to allow the Court to assess his qualifications to render an opinion about the safety of the railings or building regulations, including his special knowledge, skill, experience, training, and education about the issue. Jackson v. Deft, Inc. (1990) 223 Cal. App. 3d 1305.
Even if Mr. Wolfe?s declaration is admissible, the parties? experts dispute whether the 2007 Edition of the California Building Code Applies. Plaintiffs contend that pursuant to the building plans, Defendants were required to comply with 2008 Los Angeles Building Codes. Therefore, Fact 4 is disputed.
The parties dispute whether 1025.14.3 of the 2007 CA Building Codes applies. Defendants contend this Code requires the guards to be a minimum of 36 inches. Plaintiffs? expert, Mr. McCann, opines that this rule applies only to ?guards at the ends of the aisles,? and not to the front of a balcony. Fact 5 is disputed.
There is no dispute that the height of the guard rails at issue measured 36.5 inches. UF 6. The parties dispute whether the guard rails at issue complied with applicable codes. Fact 7 is disputed.
Defendants further contend they are not negligent on a theory of negligence or premises liability, as Defendants received a Certificate of Occupancy on 12/30/10, which is undisputed. UF 23. However, as Plaintiffs argue, the issuance of a permit or the approval of any documents shall not ?constitute an approval of any violation of any provision of this Code or of any other law or ordinance, and a permit or other document purporting to give authority to violate any law shall not be valid with respect thereto. Plaintiff?s Ex. 9, 2008 City of Los Angeles Building Code, Rule 106.4.3.2, Avrit Declaration, 3:22-26.
Adjudication of Issues 2, 7, 14, and 19 are DENIED as these are not proper issues for adjudication. Defendants contend that the negligence claim fails because alcohol was not a cause of Plaintiff?s injury. However, as Plaintiffs argue, the availability of alcohol sold by Defendants is not alleged as a basis for liability. Rather, Plaintiffs allege that the providing of alcohol made it ?more likely? that guests would fall over the inadequate railing. Second Amended Complaint, page 4, ? GN-1. Material issues are determined by the allegations of the complaint. Eriksson v. Nunnink, (2011) 191 Cal. App. 4th 826, 848.
Adjudication of Issues 3, 8, 15 and 20 are DENIED. Defendants contend that any alleged breach of duty to warn of a dangerous condition did not cause Plaintiff?s injuries, based on the same material facts asserted in support of Issue 1. Defendants repeat the same facts for all issues, and they remain in dispute as previously discussed.
Adjudication of Issues 4, 9, 16 and 21 are DENIED. Defendants claim any alleged duty to inspect or maintain the premises did not cause Plaintiffs? injuries. Defendants assert the identical facts in support of Issue 1, essentially asserting that the railings complied with the applicable code. These facts remain in dispute.
Adjudication of Issues 10, 17, and 22 are DENIED. Defendants contend that the premises liability claim fails because any allegedly negligent hiring, training, or supervision of an employee did not cause Plaintiff?s injury. Defendants submit identical facts to support the contention that the railing complied with the code which are disputed.
Adjudication of Issues 11 and 23, (negligent infliction of emotional distress on behalf of Ilan Rubin) is DENIED. Defendants have not established that they did not negligently cause Aaron?s injuries.
As this claim is one for negligence, Plaintiffs must show that Defendants owed a duty, breached that duty and caused Plaintiff?s injuries. Marlene F v. Psychiatric Med Clinic (1989) 48 Cal.3d 583, 588. Defendants proffer the same facts contending the guard rails complied with the applicable Code. Facts 75, 76 and 78 are disputed.
Adjudication of Issues 12 and 24 are DENIED. The claim for loss of consortium on behalf of Aaron Rubin?s wife, Anya Rubin, requires evidence showing that Defendants were negligent in causing her spouse?s injuries. If the spouse?s injury claim fails, then the claim for loss of consortium also fails. Hahn v. Mirda, 147 Cal. App. 4th (2007) 740, 746 (2007). Defendants proffer the same material facts showing compliance with the building code. Facts 85, 86 and 88 are disputed.
Moving party is ordered to give notice.