Williams v. Forum Entertainment CA2/8 ( 2022 )

Filed 12/8/22 Williams v. Forum Entertainment CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
LAKISHA WILLIAMS, B314514
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. 20STCV04595
v.
FORUM ENTERTAINMENT LLC,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Daniel M. Crowley, Judge. Affirmed.
Downtown L.A. Law Group, Anthony Werbin; and
C. Athena Roussos for Plaintiff and Appellant.
Barbanel & Treuer, Alan H. Barbanel, Henry C.
Truszkowski and Tony Abdollahi for Defendant and Respondent.
_____________________________
INTRODUCTION
While attending a concert in Los Angeles, plaintiff and
appellant Lakisha Williams slipped in a puddle of liquid and fell
down some stairs. She sued defendant and respondent Forum
Entertainment LLC (the Forum) for negligence and premises
liability. The trial court granted the Forum’s motion for
summary judgment on the ground that Williams had not
established a triable issue of material fact that the Forum had
actual or constructive notice of the spill. We affirm.
BACKGROUND
1. Factual Background
On April 21, 2018, Williams and a friend attended a concert
at the Los Angeles Forum. They were seated in section 205, row
19, seats 11 and 12. Section 205 is in the upper bowl, and row 19
is near the top of that section.
Williams’s seats were accessible by a staircase with a
center handrail. According to the Forum, the steps are treated
with a slip-resistant coating and marked with yellow reflective
paint. Williams testified in her deposition, however, that there
was no yellow reflective paint on the stairs the night of the
concert.
About 90 minutes into the show, Williams and her friend
left their seats to use the restroom. Williams walked down the
left side of the stairs. It was dark, and Williams looked down at
her feet.
After taking five or six steps, Williams slipped in a large
amount of liquid—possibly a mixture of beer and soda. The
liquid was sticky. Her feet slipped out from under her; she slid
down two or three steps and landed on her right hip.
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Williams’s friend screamed. Two ushers stationed nine or
ten feet away on the landing below came to help. Williams
suffered injuries to her hip, shoulder, and lower back.
2. Complaint
Williams filed the operative complaint on February 4, 2020,
asserting causes of action for negligence and premises liability.1
She alleged that while descending stairs at a concert, she stepped
on a liquid substance, which caused her to slip, fall, and sustain
injuries. She claimed that the steps were “not properly installed,
maintained, cleaned and/or protected at said property causing
Plaintiff to sustain the injuries and damages as hereinafter
alleged.” By her action, Williams sought to recover general
damages, compensatory damages, and costs of suit.
3. Summary Judgment Proceedings
The Forum moved for summary judgment on the ground
that Williams’s factually devoid discovery responses on the issues
of actual and constructive notice of the spill established that
there was no triable issue of material fact. Williams opposed the
motion, arguing that her deposition testimony that ushers were
standing approximately 10 feet from the spill raised an inference
of constructive notice.
The court granted the Forum’s motion for summary
judgment. The court reasoned: “plaintiff does not provide any
facts regarding when the area had last been inspected or cleaned.
1 The initial complaint sued The Madison Square Garden
Company, but the complaint was amended on August 22, 2020, to
add Forum Entertainment LLC (formerly known as MSG Forum
LLC) as a defendant.
3
Plaintiff attempts to impute knowledge onto Defendant by
inferring that inspections were not being performed and that the
condition must have existed for long enough that it could have
been discovered, but does not provide factual allegations
supporting that part of the argument. Without the necessary
factual support, Plaintiff cannot demonstrate that Defendant
knew or should have known about the condition that caused her
injury.” Accordingly, “it becomes impossible for the Plaintiff to
prove her claims.”
4. Judgment and Appeal
The court signed and entered a judgment in favor of the
Forum on July 19, 2021. Williams timely appeals.
DISCUSSION
Williams contends the court erred in granting summary
judgment because there are triable issues of material fact as to
whether the Forum had actual or constructive notice of the spill.
We disagree.
1. Standard of Review
The standard of review is well established. “The purpose of
the law of summary judgment is to provide courts with a
mechanism to cut through the parties’ pleadings in order to
determine whether, despite their allegations, trial is in fact
necessary to resolve their dispute.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 843.) The moving party
“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.” (Id. at p. 850, fn. omitted; Code Civ. Proc., § 437c,
subd. (c).) The pleadings determine the issues to be addressed by
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a summary judgment motion. (Metromedia, Inc. v. City of San
Diego (1980) 26 Cal.3d 848, 885, reversed on other grounds by
Metromedia, Inc. v. City of San Diego (1981) 453 U.S. 490; Nieto
v. Blue Shield of California Life & Health Ins. Co. (2010) 181
Cal.App.4th 60, 74.)
On appeal from a summary judgment, we review the record
de novo and independently determine whether triable issues of
material fact exist. (Saelzler v. Advanced Group 400 (2001) 25
Cal.4th 763, 767; Guz v. Bechtel National, Inc. (2000) 24 Cal.4th
317, 334.) We resolve any evidentiary doubts or ambiguities in
favor of the party opposing summary judgment. (Saelzler, at
p. 768.) In performing an independent review of the granting of
summary judgment, “we follow the traditional three-step
analysis. ‘We first identify the issues framed by the pleadings,
since it is these allegations to which the motion must respond.
Secondly, we determine whether the moving party has
established facts which negate the opponents’ claim and justify a
judgment in the movant’s favor. Finally, if the summary
judgment motion prima facie justifies a judgment, we determine
whether the opposition demonstrates the existence of a triable,
material factual issue. [Citation.]’ ” (Shamsian v. Atlantic
Richfield Co. (2003) 107 Cal.App.4th 967, 975.) “We need not
defer to the trial court and are not bound by the reasons in its
summary judgment ruling; we review the ruling of the trial court,
not its rationale.” (Oakland Raiders v. National Football League
(2005) 131 Cal.App.4th 621, 630.)
The appellant has the burden to show error, even if the
appellant did not bear the burden in the trial court, and
“ ‘to point out the triable issues the appellant claims are present
by citation to the record and any supporting authority.’ ”
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(Claudio v. Regents of the University of California (2005) 134
Cal.App.4th 224, 230.) Further, “an appellant must present
argument and authorities on each point to which error is asserted
or else the issue is waived.” (Kurinij v. Hanna & Morton (1997)
55 Cal.App.4th 853, 867.) Matters not properly raised or that
lack adequate legal discussion will be deemed forfeited. (Keyes v.
Bowen (2010) 189 Cal.App.4th 647, 655–656.)
2. The court properly granted the Forum’s motion for
summary judgment.
2.1. Williams’s Complaint
As noted, we first consider the allegations of Williams’s
complaint to determine the scope of the issues.
Williams alleged causes of action for negligence and
premises liability. As the party with the ultimate burden at trial,
therefore, Williams would be required to establish that the
Forum had actual or constructive notice of the spill.
Williams alleged that the Forum “fully and well knew, or
should have known in the exercise of reasonable care, that the
structures and/or components and/or other parts of said building
were in a dangerous and defective and unsafe condition, and a
menace to Plaintiff and others lawfully on said premises.” She
further alleged that the Forum was maintained in “a dangerous,
defective, and unsafe condition in conscious disregard for the risk
of harm to invitees thereon. By reason of said carelessness,
negligence and conscious disregard of the Defendants, and each
of them, said premises were unsafe and dangerous to the general
public and specifically Plaintiff,” and the Forum “failed to warn
Plaintiff of said dangerous, defective and unsafe condition,
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although said Defendants, and each of them, knew of said
condition.”
These allegations sufficiently allege the duty element of
negligence and premises liability.
2.2. The Forum’s Evidence
As the moving party, the Forum had the initial burden to
show that Williams’s claims have no merit—that is, that one or
more elements of the causes of action could not be established, or
that there is a complete defense to that cause of action. (Code
Civ. Proc., § 437c, subd. (o); see Jones v. Wachovia Bank (2014)
230 Cal.App.4th 935, 945.) “If a defendant’s moving papers make
a prima facie showing that justifies a judgment in its favor, the
burden of production shifts to the plaintiff to make a prima facie
showing of the existence of a triable issue of material fact.”
(Jones, at p. 945; Professional Collection Consultants v. Lauron
(2017) 8 Cal.App.5th 958, 965.)
The Forum argued that Williams’s complaint and discovery
responses failed to demonstrate actual or constructive notice.
When asked to “state all facts which support [Williams’s]
contention that Defendants had actual notice of the dangerous
condition alleged,” Williams responded: “However, without
waiving said objections, Defendant owned, maintained, and/or
controlled the premises and therefore owed a duty of reasonable
care in order to ensure its premises were in a safe condition.
Defendant left a slipping hazard on the ground unattended where
Plaintiff slipped and fell. Defendant failed to properly warn,
secure, block off the area, and put up any caution signs and/or
warning devices alerting customers about a dangerous condition
that existed on the floor. Defendant’s negligent conduct caused
Plaintiff to slip and fall, thereby causing Plaintiff to sustain
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severe injuries. Responding Party reserves the right to amend
and/or supplement this response as discovery and investigation
are ongoing.”
The Forum explained that Williams provided this same
response for two other special interrogatories on the same
subject, never identifying the facts supporting her allegation that
the Forum knew or should have known about the spill.
Specifically, there were no facts alleged in the complaint or
discovery responses indicating how long the condition existed.
Nor had Williams sought to conduct additional discovery or to
amend her discovery responses.
The Forum also submitted a declaration by its Director of
Building Operations describing policies and procedures for
addressing spills that might create a danger for guests. The
Forum contracts with ABM Industries (ABM) for maintenance
and custodial services. ABM typically cleans the aisle stairways
before each event. Before the venue opens to guests, there are
usually two inspections, and any spill or debris identified is
immediately corrected by ABM staff. The declaration did not
identify any procedures for inspection by ABM during the shows.
The Forum contracts with Contemporary Services
Corporation (CSC) to provide ushers, security, and crowd
management personnel. During the shows, ushers are positioned
at the landings at the bottom of each stairway aisle, with access
to absorbent spill pads at each landing. Ushers and security staff
are trained in the use of the absorbent spill pads. During shows,
ushers and other building personnel “are trained to immediately
identify and report to LA Forum command center any spills or
debris. This includes spills brought to the attention of ushers
and other building personnel by guests or other persons on the
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premises. The LA Forum command center then notifies the on-
site ABM dispatcher who immediately dispatches an ABM rover
or spill team to the identified site.” After spills are identified,
personnel remain at the area to warn patrons until it is cleaned
or other warning signs or devices are placed to restrict the area
and warn patrons.
The court below concluded that the Forum had produced
sufficient evidence to meet its initial burden of production on the
constructive notice issue, i.e., that Williams could not establish
that the Forum had notice of the spill. Williams does not contend
the court erred on this point, and, therefore, has forfeited any
argument that the burden should not have shifted to her.
2.3. Williams’s Evidence
Williams did not provide additional evidence in her
opposition to the Forum’s motion, instead opting to rely on
competing inferences from her deposition and the Forum’s
evidence. She contended that the considerable quantity of liquid
on the floor, its stickiness, and the presence of two ushers nine or
ten feet away raised a reasonable inference of actual notice.
Further, Williams testified that the ushers saw her fall, which
she argued supported an inference that they were looking up the
stairs and directly at the hazardous area. Williams also asserted
that the presence of both beer and soda indicated that there had
been more than one spill over a period of time. And, she claimed,
it was reasonable to infer that since the ushers were trained to
identify spills during shows, including in dark conditions, they
should have spotted this one.
Williams also argued that the Forum’s evidence—
particularly the declaration by its building manager—supported
a series of inferences about its inspection procedures. She noted
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that although the stairs are inspected and cleaned before a show,
and although there are policies about cleaning spills if they are
noticed during a show, the building manager did not identify any
policies for inspecting the stairs during an event.
The Forum, in its reply, argued that because “the alleged
spill was not so obvious or conspicuous to plaintiff,” who was
looking directly at the ground, it was not reasonable to infer that
the ushers would have seen it from the bottom of the stairs.
2.4. Law of Premises Liability
“It is well established in California that although a
[business establishment] is not an insurer of the safety of its
patrons, the owner does owe them a duty to exercise reasonable
care in keeping the premises reasonably safe. [Citations.]
In order to establish liability on a negligence theory, a plaintiff
must prove duty, breach, causation, and damages. [Citations.]
A plaintiff meets the causation element by showing that (1) the
defendant’s breach of its duty to exercise ordinary care was a
substantial factor in bringing about plaintiff’s harm, and (2) there
is no rule of law relieving the defendant of liability. [Citation.]
These are factual questions for the jury to decide, except in cases
in which the facts as to causation are undisputed. [Citation.]”
(Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 (Ortega).)
The plaintiff need not show that the defendant possessed
actual knowledge of the dangerous condition “where evidence
suggests that the dangerous condition was present for a sufficient
period of time to charge the owner with constructive knowledge of
its existence. Knowledge may be shown by circumstantial
evidence ‘which is nothing more than one or more inferences
which may be said to arise reasonably from a series of proven
facts.’ [Citation.]” (Ortega, supra, 26 Cal.4th at pp. 1206–1207.)
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An “owner exercises ordinary care by making reasonable
inspections of the portions of the premises open to customers, and
the care required is commensurate with the risks involved.
[Citation.]” (Ortega, supra, 26 Cal.4th at p. 1205.) “Whether a
dangerous condition has existed long enough for a reasonably
prudent person to have discovered it is a question of fact for the
jury, and the cases do not impose exact time limitations. Each
accident must be viewed in light of its own unique circumstances.
[Citation.] The owner must inspect the premises or take other
proper action to ascertain their condition, and if, by the exercise
of reasonable care, the owner would have discovered the
condition, he is liable for failing to correct it. [Citation.]” (Id. at
p. 1207.)
Plaintiffs must produce “evidence that the dangerous
condition existed for at least a sufficient time to support a finding
that the defendant had constructive notice of the hazardous
condition. [Citation.]” (Ortega, supra, 26 Cal.4th at p. 1212.)
If the plaintiff cannot make this showing, the defendant is
entitled to judgment as a matter of law. (Id. at p. 1207.) But a
plaintiff may demonstrate that the business-owner “had
constructive notice of the dangerous condition if they can show
that the site had not been inspected within a reasonable period of
time so that a person exercising due care would have discovered
and corrected the hazard. [Citation.] In other words, if the
plaintiff[ ] can show an inspection was not made within a
particular period of time prior to an accident, they may raise an
inference the condition did exist long enough for the owner to
have discovered it. [Citation.]” (Id. at pp. 1212–1213.)
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2.5. Williams did not present sufficient evidence to
create a triable issue on notice.
Ortega observed that the “ ‘exact time the condition must
exist before it should, in the exercise of reasonable care, have
been discovered and remedied, cannot be fixed, because,
obviously, it varies according to the circumstances. A person
operating a grocery and vegetable store in the exercise of
ordinary care must exercise a more vigilant outlook than the
operator of some other types of business where the danger of
things falling to the floor is not so obvious.’ [Citation.]” (Ortega,
supra, 26 Cal.4th at p. 1210.) We agree with Williams that the
Forum—a popular concert venue filled with thousands of fans,
who are encouraged to purchase alcohol and other drinks in open
cups, then carry those cups up steep stairs, in the dark, back to
their seats—is at least as dangerous as a grocery store. Indeed,
Williams testified that the venue was dark, and a lot of people
were drinking. As such, the Forum owed a heightened duty of
care to concertgoers.
In her opposition to the Forum’s summary judgment
motion, Williams stressed that “the defendant outlines a number
of policies and procedures [in the building manager’s declaration].
However, these polices and procedures are silent on very
important matters. (1) No procedure is outlined for the
inspection of walkways, including darkened stairs, during a
show—only before. (2) No policy or procedure is outlined
[directing] the usher, security guard, or other personnel [to] scan
or keep watch for hazardous floor conditions such as spilled
drinks on the stairs. (3) No job or duty description is provided for
the two LA Forum personnel who are positioned at the bottom of
the landing—including whether or not they are trained to [look]
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for themselves to identify spills. The separate statement only
says they are trained if a customer or other third party informs
them of a spill.”
It may well be, as Williams suggests, that the Forum
doesn’t require employees to inspect common areas for spills
during shows. Or, it may be that there was such a policy, and it
wasn’t followed. Likewise, as Williams argued below, the
Forum’s “separate statement is devoid of facts regarding what, if
anything, the [ushers at the bottom of the stairs] did or did not
do, did or did not see on the date of the incident.” Such facts may
well have shed light on whether the area had been properly
inspected within a reasonable time—and, in turn, whether the
Forum exercised reasonable care.
In short, Williams raises legitimate questions—questions
her attorneys could have sought answers to in discovery. But the
absence of evidence is not evidence of absence. And by the time
the burden of production shifted to Williams, she was required to
produce evidence, not just point out the deficiencies in the
Forum’s submission. Without answers to the questions Williams
raises, we are left with speculation, not inferences—and
speculation is not enough. This is not a case of strict liability.
Williams had to present more than evidence that there was a
spill that caused her to slip.
We also disagree that Williams’s deposition testimony,
without more, created a triable issue of material fact. As
discussed, Williams testified that she slipped on a large pool of
sticky liquid that she believed to be a mixture of soda and beer.
There were ushers nine or ten feet away, at the foot of the stairs.
They saw her fall. From these facts, Williams invites us to infer
13
that the ushers had actual or constructive notice of the dangerous
condition.
Certainly, the liquid’s stickiness might indicate that it had
been on the ground for some amount of time. Williams relies on
Louie v. Hagstrom’s Food Stores, Inc. (1947) 81 Cal.App.2d 601,
to support the proposition that a spilled substance’s stickiness
constitutes “circumstantial evidence from which the jury could
have inferred that the syrup was on the floor for a sufficient time
so that, in the exercise of reasonable care, the defendant should
have discovered it and remedied the defective condition.” (Id. at
p. 608.) But Williams does not acknowledge that in Louie, there
was also “evidence that no employee of defendant examined the
front entrance for between 15 to 25 minutes immediately
preceding the accident.” (Ibid.) Here, Williams has presented no
evidence to establish when the area had last been inspected.
Nor has she presented any evidence about how long spilled soda
or beer takes to grow sticky.
We are thus left with the question of whether the ushers
should have seen the spill. We cannot conclude that the spill was
obvious enough to constitute constructive notice. The Forum was
dark, and the stairs were steep. Because Williams was sitting at
the top of the section and the spill was only a few steps below her
row, the spill must also have been fairly high up. Importantly,
Williams, who was looking at her feet, did not see the spill until it
was too late to avoid it. Without more, it is not reasonable to
infer that the ushers, who were nine or ten feet away at the
bottom of stairs, should have seen the spill or had a vantage point
from which the spill was visible.
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Accordingly, we agree with the trial court that there is no
triable issue of material fact on the question of notice and
conclude summary judgment was properly granted.
DISPOSITION
The judgment is affirmed. Costs are awarded to
respondent Forum.
HARUTUNIAN, J.*
We Concur:
GRIMES, Acting P. J.
WILEY, J.
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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