Howard v. Accor Management US ( 2024 )

Filed 3/13/24; Certified for Publication 4/3/24 (order attached)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MONIQUE HOWARD, B320603
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. 19STCV08792
v.
ACCOR MANAGEMENT US,
INC.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Jill Feeney, Judge. Affirmed.
Nguyen Theam Lawyers, Minh T. Nguyen; Guenard &
Bozarth, Glenn Guenard, Anthony Wallen; Gusdorff Law and
Janet Gusdorff for Plaintiff and Appellant.
Gordon Rees Scully Mansukhani, Don Willenburg and
Laura Ryan for Defendant and Respondent.
____________________
As Monique Howard went to shower during her hotel stay,
the handheld shower head fell apart. Howard cut herself and
fell. Later she sued the hotel for negligence and premises
liability. The trial court granted summary judgment. We affirm
because Howard failed to mount a triable issue of material fact
on the key issue of notice and failed to establish the applicability
of a venerable but inapt doctrine—res ipsa loquitur.
I
The core facts are few.
In March 2017, Howard and her then boyfriend stayed at
the Sofitel Los Angeles at Beverly Hills. Both took showers on
their arrival day without incident. The next morning, they took
individual showers again and went shopping. When Howard
returned that afternoon, she noticed the room had been cleaned.
She went to take another shower before her scheduled massage.
During her deposition, Howard described what happened
when she went for this third shower: “[I]t was a little after 1:00
and when I got into the shower it started spraying me in the face,
and it is two shower heads. There is an overhead shower, I guess
men would use, and then there is a shower that they have that is
a detachable shower. As soon as I stepped in the shower and
turned the water on I noticed that it was spraying me in the face,
which was a little odd for me because I had took a shower earlier
that day. I was -- kind surprised me, plus I had full makeup on.
It was spraying me in my face. When that happened I went to
take the shower off of the shower handle and that is when it just
dismantled and fell apart.”
Howard sued in March 2019. Her complaint asserts the
broken shower head cut her hand, caused her to fall back onto
her tailbone, and left her with severe injuries.
2
Howard later amended her complaint to sue Accor
Management US, Inc., the only respondent on appeal, who
operated the hotel at the time of the incident.
Accor moved for summary judgment, arguing Howard could
not establish it had actual or constructive notice of any problem
with the handheld shower head. The hotel did not contest the
shower head came apart while Howard was showering. Nor did
it contest a housekeeper had cleaned Howard’s room the day
before and the day of the incident.
Howard responded with declarations by herself and her
boyfriend. Both claimed they did not notice any cracks or
damage to the shower wand during their two showers before the
incident. They also claimed they did not drop, hit, mishandle,
tighten, damage, or break the wand during these earlier showers.
The boyfriend did not use the shower wand at all—he only used
the fixed overhead shower.
Howard’s description of the incident in her declaration
differed somewhat from the description at her deposition: She
declared that for her third shower, the water sprayed her and in
all directions when she turned on the faucet. She reached for the
wand, and it sliced her hand, suddenly came apart, and fell to the
floor.
Howard’s opposition argued the hotel’s housekeeper must
have broken the shower wand and failed to report this, and the
hotel thus had actual knowledge of the problem its housekeeper
caused, because the wand was fine for the morning shower but
broken for the afternoon shower and only the housekeeper was in
the room between showers. Howard supplied the declaration of
her retained expert, Brad P. Avrit, to help establish the
housekeeper broke the wand between showers. She also argued
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the doctrine of res ipsa loquitur applied and rendered summary
judgment inappropriate.
As part of its reply, Accor noted it offered to make the
housekeeper available for deposition in time for Howard’s
opposition. But instead of deposing the housekeeper, Howard
had an expert speculate about what she did. Accor challenged
Avrit’s testimony on many grounds, including by asserting his
opinions lacked an adequate foundation and amounted to
speculation and legal conclusions.
The trial court sided with Accor on the issue of notice and
concluded Howard’s showing that the housekeeper negligently
broke the shower wand was insufficient. The court also rejected
the res ipsa loquitur doctrine. Regarding Avrit, the court
sustained most but not all of Accor’s evidentiary objections,
concluding Avrit’s declaration “is replete with inadmissible
opinion evidence regarding legal conclusions. More importantly,
Avrit’s declaration contains conclusions that lack foundation and
which are speculative in nature.”
Howard appealed the summary judgment ruling.
II
We independently review the summary judgment decision
and apply the familiar standard. (See Bacoka v. Best Buy Stores,
L.P. (2021) 71 Cal.App.5th 126, 132.)
Our independent review shows the trial court was correct.
The evidence did not establish a triable issue of material fact as
to Accor’s notice of a flaw in the shower wand. (See Ortega v.
Kmart Corp. (2001) 26 Cal.4th 1200, 1203 & 1206–1207 [property
owner must have actual or constructive notice of an unsafe
condition before incurring liability]; see also Howard v. Omni
Hotels Management Corp. (2012) 203 Cal.App.4th 403, 410, 431–
4
432 & 434 [notice requirement applies to hotels on negligence
and premises liability claims].)
Howard offers four reasons summary judgment was
inappropriate: (1) her evidence raises triable issues regarding
the hotel’s knowledge of the unsafe shower wand; (2) whether the
hotel conducted a reasonable inspection of the wand and had
sufficient time before the incident to discover its unsafe condition
are other triable issues; (3) the doctrine of res ipsa loquitur
applies; and (4) the trial court abused its discretion in
disregarding the declaration of Howard’s expert.
A
On the first two issues, Howard recognizes her claims
require actual or constructive knowledge of an unsafe condition
by the landowner. But Howard forfeited any argument about the
hotel’s constructive knowledge or notice due to unreasonable
inspections because she never presented this issue to the trial
court, either in her opposition brief or during oral argument.
(See, e.g., Magallanes de Valle v. Doctors Medical Center of
Modesto (2022) 80 Cal.App.5th 914, 924 [liability theories not
addressed in a plaintiff’s summary judgment opposition and not
brought to the trial court’s attention cannot create a triable issue
on appeal].)
There was a good reason for this omission: Howard’s
theory in the trial court was the housekeeper broke the shower
wand while Howard was shopping and then failed to tell anyone
or do anything about it. This theory is inconsistent with a theory
the wand broke at some unknown earlier time yet went
undiscovered due to inadequate inspections by the housekeeper
or the hotel.
5
As for actual notice, Howard maintains on appeal, as she
did at the trial court, that we impute knowledge of an unsafe
condition to an employer where the employee created the
condition. (See Hatfield v. Levy Brothers (1941) 18 Cal.2d 798,
806.) She argues the evidence shows the housekeeper was the
only one to see and use the shower wand after it was functioning
properly that morning, and, in light of hotel witnesses’ comments
about how housekeepers use these wands when cleaning, the only
reasonable inference is the housekeeper did something to break
this wand or at least noticed its poor condition. We therefore
must conclude it was more likely than not Accor knew of the
shower wand’s unsafe condition.
Howard’s problem is nothing shows the housekeeper did
anything to break the shower wand. The evidence does not show
the housekeeper was required to use the wand. There was no
evidence from the housekeeper, as Howard decided not to depose
her. No evidence suggested this housekeeper used this wand
during her cleaning that day. For example, Howard did not
testify the shower walls were wet before she took her afternoon
shower. The hotel’s Housekeeping Standards say housekeepers
are to spray bathroom fixtures with cleaning solution during
cleanings; but we are not told these standards say anything about
using shower wands. Housekeepers are to prepare a work order
if they notice any problems with a fixture; but no work order
existed for Howard’s room.
While some hotel witnesses testified about housekeepers
using detachable shower heads when cleaning, the testimony was
not clear on when, if ever, these shower heads had to be used.
One witness discussed cleanings after check outs and those for
stayover guests. Howard does not address this distinction.
6
The hotel witnesses also established the hotel’s engineering
and maintenance team had inspected Howard’s room several
months before the incident, and had performed a preventative
maintenance check on the shower fixtures, but the team found no
issue with these fixtures. There were no other reports of
defective or broken shower heads at the hotel. Further, no
assembly was required for the section of the shower head that
broke—it arrived in one piece from the distributor/manufacturer.
We agree with the trial court that the evidence was
insufficient to raise a triable issue on notice.
We follow the standard procedural rules here. We view the
evidence and reasonable inferences in favor of the party opposing
summary judgment. (Jones v. Wachovia Bank (2014) 230
Cal.App.4th 935, 945.) But we draw inferences from evidence,
not from possibilities. (Id. at pp. 945–946; Montague v. AMN
Healthcare, Inc. (2014) 223 Cal.App.4th 1515, 1525 [“speculative
inferences do not raise a triable issue of fact”]; see also Peralta v.
Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036 (Peralta)
[conjecture is legally insufficient to defeat summary judgment;
speculation, and the mere possibility there was a slippery
substance on the floor, does not establish causation].)
Howard’s papers ask us to make many leaps of logic to infer
it was more likely than not that the housekeeper’s negligence
caused the shower wand to break. (See Peralta, at p. 1035
[plaintiffs must introduce evidence affording a reasonable basis
for concluding it is more likely than not the defendant’s conduct
caused the result].)
Howard’s deposition testimony leads to reasonable
inferences the cause was something else: the shower head
sprayed Howard because it was facing her, and Howard’s quick
7
reach for the wand or an inherent defect could have caused its
dismantling. There is no inconsistency between these causes and
Howard’s and her boyfriend’s statements about the care they took
with their earlier showers.
The evidence does not show the shower wand was broken
before Howard grabbed it. When describing the incident at her
deposition, Howard did not say the wand was sharp or broken
then. Nor does Howard’s declaration say she was cut before the
wand fell apart.
Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, on
which Howard relies, is distinguishable. In that atypical slip and
fall case, the plaintiff’s evidence showed the jewelry cleaning
solution on which he fell could only have been on the break room
floor of the jewelry store due to the negligence of store employees:
Only the plaintiff (an independent contractor of the store) and
store employees had access to the break room and the cleaning
solution, the plaintiff had observed store employees use the
solution in a way that could cause leaks onto the floor, and he did
not cause this pool of cleaning solution. (See id. at pp. 382–384 &
386.) In contrast, Howard did not show that the shower wand
was under the hotel’s exclusive control and that she did not cause
its failure.
B
Howard relied on her expert Avrit to try to bridge the gaps
in her evidence. She claims, in her fourth appellate issue, that
the trial court abused its discretion in disregarding most of this
expert’s opinions.
Howard has not adequately presented the issue for our
review. Her opening brief defends Avrit’s expertise and sets out
what he reviewed in forming his opinions but essentially asks us
8
to do the real work for her: to examine the trial court papers and
determine which statements the trial court struck and why, and
to discern why each statement should have come in despite the
specific objections asserted. This was Howard’s job, and we will
not develop her arguments for her. (See United Grand Corp. v.
Malibu Hillbillies, LLC (2019) 36 Cal.App.5th 142, 153; see also
id. at p. 157 [appellate courts are not required to search the
record for error].)
Howard’s brief does provide sufficient arguments as to some
excluded statements by Avrit: statements about this shower
wand’s composition, how this wand could break (or shear), when
and how this wand did break (the housekeeper “must have”
broken it, either intentionally or unintentionally, after Howard’s
morning shower), and the hotel’s resulting notice of the break.
We cannot say the trial court exceeded the bounds of reason
in excluding these statements, given:
1. Avrit did not question the housekeeper or examine
any statements by her;
2. he covertly inspected the hotel room more than one
year after the incident but made no attempt to
explain how the shower fixtures and conditions then
mirrored those when Howard was injured;
3. he apparently never examined the broken shower
wand and relied instead on pictures and a witness
statement that the shower head was made of plastic;
4. Howard conceded that “countless” varieties of plastics
are used for consumer products, but Avrit failed to
explain how he knew the properties of this particular
product; and
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5. Avrit based his conclusion the wand was sheared or
broken after Howard’s morning shower but before her
afternoon shower largely on Howard’s and her
boyfriend’s statements.
(See Peralta, supra, 24 Cal.App.5th at p. 1036 [absent any
evidence there was a foreign substance on the floor, Avrit’s
opinion as to the cause of plaintiff’s fall was mere conjecture];
Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 762–764 [no
abuse of discretion to exclude expert’s opinions as conclusory,
speculative, and lacking foundation where, among other things,
the expert failed to inspect the escalator at issue].) Bozzi
reinforces that expert speculation is not evidence that can defeat
summary judgment. (Bozzi, at pp. 763–764.)
Trial courts have a duty to act as gatekeepers. They must
exclude speculative expert testimony. (Sargon Enterprises, Inc. v.
Univ. of Southern Cal. (2012) 55 Cal.4th 747, 753.) This court’s
decisionmaking was not an abuse of discretion. (See id. at p.
773.)
C
On the final issue, Howard admits it was her burden to
establish res ipsa loquitur. This doctrine applies when the
nature of an accident compels the conclusion it probably resulted
from the defendant’s negligence. (Howe v. Seven Forty Two Co.,
Inc. (2010) 189 Cal.App.4th 1155, 1161 (Howe).) Or, as our
Supreme Court has explained it, “certain kinds of accidents are
so likely to have been caused by the defendant’s negligence that
one may fairly say ‘the thing speaks for itself.’ ” (Brown v. Poway
Unified School Dist. (1993) 4 Cal.4th 820, 825.) The doctrine has
three requirements: (1) the accident was of a kind that ordinarily
does not occur absent someone’s negligence; (2) the
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instrumentality of harm was within the defendant’s exclusive
control; (3) the plaintiff did not voluntarily contribute to the
harm. (Id. at pp. 825–826 & 836.)
Two elements are missing here. First, as addressed above,
it is not apparent hotel shower heads only fall apart due to the
hotel’s negligence. Second, Howard’s deposition testimony
suggests her grabbing action could have caused the break.
Howard inaccurately contends this case is like others
where the evidence was sufficient to invoke res ipsa loquitur.
The factually distinct cases she cites are not on point. (See Howe,
supra, 189 Cal.App.4th at pp. 1159 & 1162; Emerick v. Raleigh
Hills Hospital (1982) 133 Cal.App.3d 575, 579, 583 & 585; Dennis
v. Carolina Pines Bowling Center (1967) 248 Cal.App.2d 369,
374–375; Mitzner v. Wilson (1937) 21 Cal.App.2d 85, 87.) In most
of them, unlike here, there was no room to conclude the plaintiff
voluntarily caused the problem. For example, in Mitzner, the
plaintiff was sleeping in her hotel bed when part of the ceiling fell
on her. (Mitzner, at p. 87.)
Summary judgment was proper here.
DISPOSITION
We affirm the judgment and award costs to the respondent.
WILEY, J.
We concur:
STRATTON, P. J. VIRAMONTES, J.
11
Filed 4/3/24
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
MONIQUE HOWARD, B320603
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. 19STCV08792
v.
ORDER CERTIFYING
ACCOR MANAGEMENT US, OPINION
INC., FOR PUBLICATION
Defendant and Respondent. [No change in judgment]
THE COURT:
The opinion in the above-entitled matter filed on March 13,
2024, was not certified for publication in the Official Reports. For
good cause, it now appears that the opinion should be published
in the Official Reports and it is so ordered.
There is no change in the judgment.
____________________________________________________________
STRATTON, P. J. WILEY, J. VIRAMONTES, J.