Xiao v. Americana at Brand CA2/5 ( 2024 )

Filed 1/11/24 Xiao v. Americana at Brand CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
YUAN XIAO, B322567
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 21STCV10468)
AMERICANA AT BRAND LLC et
al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Michael E. Whitaker, Judge. Affirmed.
State Law Firm, Arnold W. Gross, and Eddie Tehrani for
Plaintiff and Appellant.
Kabat Chapman & Ozmer and Theresa A. Kristovich for
Defendants and Respondents.
Plaintiff Yuan Xiao (plaintiff) was injured when he was
struck by a person who jumped to his death from atop a parking
structure at a shopping center operated by defendants The
Americana at Brand, LLC, Caruso Affiliated Holdings, LLC, and
Caruso Property Management, LLC (defendants). Plaintiff sued
defendants for premises liability and the trial court granted
summary judgment for defendants, finding they had no duty to
plaintiff because (among other things) the incident was not
foreseeable. Strictly speaking, the duty question is not before us.
Instead, we are asked to decide a related but narrow evidentiary
question: was the trial court correct to admit evidence that a
search of records revealed there had been no prior similar
incident on the premises?
I. BACKGROUND
A. The Complaint
The facts surrounding plaintiff’s injury are not in dispute.
Plaintiff was visiting defendants’ shopping center, The
Americana at Brand (the Americana), when a young man
committed suicide by jumping from the seventh floor of a parking
structure. The young man struck and injured plaintiff before
making contact with the ground.
Plaintiff asserted a single cause of action for premises
liability against all defendants, alleging they “knew or should
have known that parking lot structures are frequently used by
persons intent on committing suicide by jumping” and breached
their duty of care to plaintiff by, among other things, failing to
install protective barriers, surveillance cameras actively
monitored by security personnel, landscaping to block an open
landing area, and signage promoting crisis intervention services.
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B. Defendants’ Motion for Summary Judgment
Defendants moved for summary judgment and argued they
owed plaintiff no duty of care, nor did they breach any such duty
if one were assumed to exist.
On the issue of the existence of a duty, defendants argued
plaintiff’s injury was not foreseeable and emphasized there had
been no prior suicide attempts at the Americana. In support of
the argument, defendants submitted a declaration by Manuk
Michael Pashanyan (Pashanyan). Pashanyan, whose title is
“[s]ecurity [d]irector,” works for a third-party security company
and has overseen security operations at the Americana since the
shopping center opened in 2008. Among other things, Pashanyan
“oversee[s] . . . the preparation of ‘[i]ncident [r]eports’ for each
and every incident at the property . . . including slip and fall
events, patron complaints, patron altercations, thefts, and the
like.” He averred that he “directed a search of all [i]ncident
[r]eports for [the Americana] and determined that there were no
suicides and no one jumped from the parking structure” before
plaintiff was injured.
With respect to breach of a duty, defendants argued the
design and construction of the parking structure satisfied all
applicable code requirements. Defendants submitted a
declaration by Mark E. Rieser II (Rieser), a civil engineer who
stated he measured protective railings on the seventh floor of the
parking structure and found them to meet or exceed California
and International Building Code requirements. Defendants also
submitted a declaration by their Chief Design Officer, David
Williams (Williams), who stated the parking structure had been
built according to plans approved by the City of Glendale.
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Williams also explained that although “decorative grating” was
installed over certain openings on the seventh floor, the sole
purpose of the grating was to screen the view of equipment on a
nearby roof. No grating was installed at other openings “because
[the openings] provided necessary ventilation” and enhanced the
Americana’s “open air and aesthetic design.”
C. Plaintiff’s Opposition
Plaintiff argued Pashanyan’s declaration was not
admissible to show no prior similar incidents had occurred at the
Americana and there was no evidence regarding the cost of
implementing additional safety measures. Among other things,
plaintiff objected to Pashanyan’s statement concerning the lack of
prior similar incidents because his report on the result of a search
he “directed” was not based on personal knowledge and there was
no foundational showing that the incident reports are business
records. Plaintiff submitted no evidence with his opposition and
complained only that he had “not concluded [his] discovery” on
the issue of prior similar incidents (he did not ask to continue the
summary judgment hearing, however).
As to defendants’ alternative argument concerning breach,
plaintiff contended evidence of compliance with applicable
building codes is not dispositive as to whether defendants acted
with due care. Plaintiff also raised various objections to Williams
and Rieser’s declarations.
D. Trial Court Ruling
The trial court granted defendants’ motion, finding that
“[d]efendants owed no duty of care to [p]laintiff and even if such
duty of care is owed to [p]laintiff, [d]efendants did not breach said
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duty of care . . . .” Regarding the existence of a duty, the trial
court determined “[d]efendants’ evidence demonstrates that no
similar incidents had previously occurred, and thus, does not
indicate it was reasonably foreseeable that a person may jump
from the parking structure in order to commit suicide.” The trial
court overruled plaintiff’s objection to Pashanyan’s statements
concerning the lack of prior similar incidents at the Americana.
With respect to breach of a duty, the trial court determined
“[d]efendants’ evidence demonstrates [d]efendants complied with
the applicable standard of care by adhering to, and in some
measures exceeding, the applicable code requirements in the
construction of the shopping center and parking structure.”
II. DISCUSSION
Whether defendants had a duty to protect patrons from
persons jumping from buildings on their property is a function of
the foreseeability of such an event and the burden of
implementing preventative measures. (See, e.g., Vasilenko v.
Grace Family Church (2017) 3 Cal.5th 1077, 1085.) In the
premises liability context, foreseeability largely depends on
whether there have been prior similar incidents on the premises,
and plaintiff contends the trial court erred in concluding
Pashanyan’s statements concerning the absence of relevant
incident reports were admissible to establish there had been no
prior similar incidents.1 As we shall explain, the trial court did
not err in overruling the objection to Pashanyan’s declaration
1
Plaintiff does not dispute that if the lack of any prior
similar incidents at the Americana was properly established, that
precludes finding defendants liable.
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because the rules of evidence do not bar Pashanyan’s statement
that there were no incident reports reflecting a prior similar
occurrence and the absence of any such report is a trustworthy
indication that there was no prior similar incident.
A. Background Legal Principles
1. Evidentiary rules on summary judgment
A defendant moving for summary judgment must show
either “that one or more elements of the cause of
action . . . cannot be established[ ] or that there is a complete
defense to the cause of action.” (Code Civ. Proc., § 437c, subd.
(p)(2).) The defendant need not “conclusively negate” any
element of a cause of action, but must “present evidence, and not
simply point out that the plaintiff does not possess, and cannot
reasonably obtain, needed evidence.” (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, 853-854, footnote omitted.)
Declarations filed in support of a motion for summary judgment
“shall be made by a person on personal knowledge, shall set forth
admissible evidence, and shall show affirmatively that the affiant
is competent to testify to the matters stated . . . .” (Code Civ.
Proc., § 437c, subd. (d).) Though the standard of review for
evidentiary rulings in connection with summary judgment has
not been definitively settled (Reid v. Google, Inc. (2010) 50
Cal.4th 512, 535), the weight of appellate authority favors review
for abuse of discretion (LAOSC Asbestos Cases (2023) 87
Cal.App.5th 939, 946; Serri v. Santa Clara University (2014) 226
Cal.App.4th 830, 852) and that is the standard plaintiff agrees we
should apply.
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2. Duty of care in the context of premises liability
“The elements of a negligence claim and a premises liability
claim are the same: a legal duty of care, breach of that duty, and
proximate cause resulting in injury. [Citations.] Premises
liability ‘“is grounded in the possession of the premises and the
attendant right to control and manage the premises”’;
accordingly, ‘“mere possession with its attendant right to control
conditions on the premises is a sufficient basis for the imposition
of an affirmative duty to act.”’ [Citations.] But the duty arising
from possession and control of property is adherence to the same
standard of care that applies in negligence cases. [Citations.]”
(Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)
Exceptions to Civil Code section 1714’s general duty of care
must be “‘clearly supported by public policy.’” (Hoffmann v.
Young (2022) 13 Cal.5th 1257, 1267, quoting Rowland v.
Christian (1968) 69 Cal.2d 108, 112; accord Kesner, supra, 1
Cal.5th at 1143 [“The conclusion that a defendant did not have a
duty constitutes a determination by the court that public policy
concerns outweigh, for a particular category of cases, the broad
principle enacted by the Legislature that one’s failure to exercise
ordinary care incurs liability for all the harms that result”].)
Because a duty analysis is driven primarily by policy
considerations, it must “occur[ ] at a higher level of generality”
than analysis of other elements of a negligence claim. (Kesner,
supra, at 1144; accord, Kuciemba v. Victory Woodworks, Inc.
(2023) 14 Cal.5th 993, 1021.)
Although, as a general matter, there is no duty to protect a
would-be plaintiff from injuries caused by a third party, such a
duty has been found to exist when “there exists a special
relationship between the parties or some other set of
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circumstances giving rise to an affirmative duty to protect.”
(Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209.) Here,
defendants do not dispute that a special relationship exists
between “business proprietors such as shopping centers . . . and
their . . . patrons[ ] or invitees” (Delgado v. Trax Bar & Grill
(2005) 36 Cal.4th 224, 235) such that the general no-duty-to-
protect rule does not apply.
But “even when a special relationship [does] give[ ] rise to
an affirmative duty to protect, a court must still consider whether
the policy considerations set out in Rowland warrant a departure
from that duty in the relevant category of cases.” (Brown, supra,
11 Cal.5th at 222.) These considerations include “the
foreseeability of harm to the plaintiff, the degree of certainty that
the plaintiff suffered injury, the closeness of the connection
between the defendant’s conduct and the injury suffered, the
moral blame attached to the defendant’s conduct, the policy of
preventing future harm, the extent of the burden to the
defendant and consequences to the community of imposing a duty
to exercise care with resulting liability for breach, and the
availability, cost, and prevalence of insurance for the risk
involved. [Citations.]” (Rowland, supra, 69 Cal.2d at 113.)
“The Rowland factors fall into two categories. Three
factors—foreseeability, certainty, and the connection between the
plaintiff and the defendant—address the foreseeability of the
relevant injury, while the other four—moral blame, preventing
future harm, burden, and availability of insurance—take into
account public policy concerns that might support excluding
certain kinds of plaintiffs or injuries from relief.” (Kesner, supra,
1 Cal.5th at 1145.) Between these two categories, the
foreseeability factors are the “most important . . . in determining
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whether to create an exception to the general duty to exercise
ordinary care . . . .” (Kuciemba, supra, 14 Cal.5th at 1022.)
B. The Trial Court Did Not Abuse Its Discretion in
Admitting Pashanyan’s Statement Concerning the
Lack of Prior Similar Incidents
As the foregoing discussion of the governing legal
framework indicates—and as plaintiff has framed his challenge
to the trial court’s summary judgment ruling—the duty analysis
turns on the admissibility of Pashanyan’s statement concerning
prior similar incidents. As relevant for our purposes, defendants
contend the absence of any similar incident report was sufficient
to satisfy its initial burden as a summary judgment movant.
Evidence Code section 1272 provides that “[e]vidence of the
absence from the records of a business of a record of an asserted
act, condition, or event is not made inadmissible by the hearsay
rule when offered to prove the nonoccurrence of the act or event,
or the nonexistence of the condition, if: [¶] (a) It was the regular
course of that business to make records of all such acts,
conditions, or events at or near the time of the act, condition, or
event and to preserve them; and [¶] (b) The sources of
information and method and time of preparation of the records of
that business were such that the absence of a record of an act,
condition, or event is a trustworthy indication that the act or
event did not occur or the condition did not exist.”2
Here, Pashanyan explained he oversees the preparation of
incident reports in the regular course of business for even minor
2
Undesignated statutory references that follow are to the
Evidence Code.
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injuries, indicating a report would certainly have been generated
for a suicide or attempted suicide. Pashanyan’s direction of a
search of “all” incident reports is fairly read to indicate they are
preserved indefinitely.3 Further, the comprehensiveness of the
records and the Americana’s interest in collecting contact
information for witnesses suggest the sources of information and
method and time of preparation are such that the absence of a
report concerning a suicide or attempted suicide is a trustworthy
indication there were no prior incidents of this type. There is also
no foundational concern with Pashanyan’s statement because his
declaration states he determined there was no prior similar
incident after directing a search of all incident reports.
Plaintiff, however, argues the trial court’s admission of
Pashanyan’s statement regarding the absence of business records
under section 1272 was an abuse of discretion because this ruling
conflicts with the trial court’s exclusion of an incident report
concerning plaintiff’s injury. Even if we accept plaintiff’s premise
that such a conflict necessarily means the trial court abused its
discretion in admitting Pashanyan’s statements—rather than
vice versa—the purported conflict is still illusory.
3
Pashanyan’s use of the word “all” notably parallels the use
of the term in section 1272 (“It was the regular course of that
business to make records of all such acts . . . .”). In addition, even
if one might doubt that every single incident report generated is
preserved indefinitely no matter how minor the incident, we are
concerned here with only similar incident reports—i.e., reports
documenting a suicide or suicide attempt—and there is good
reason to believe any of those such reports, if they existed, would
be indefinitely preserved in the manner implied by Pashanyan’s
“all” reference.
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Section 1271 provides that “[e]vidence of a writing made as
a record of an act, condition, or event is not made inadmissible by
the hearsay rule when offered to prove the act, condition, or event
if: [¶] (a) The writing was made in the regular course of a
business; [¶] (b) The writing was made at or near the time of the
act, condition, or event; [¶] (c) The custodian or other qualified
witness testifies to its identity and the mode of its preparation;
and [¶] (d) The sources of information and method and time of
preparation were such as to indicate its trustworthiness.”
Plaintiff reads section 1271 to imply the inadmissibility of a
single record means the absence of a related record is not
admissible under section 1272. But this is not the case. It may
happen, for example, that a particular record is not admissible
under section 1271, subdivision (d) because it documents
information from both trustworthy and untrustworthy sources,
yet the absence of a similar record is admissible because
trustworthy sources are silent.4 In other words, a business record
may be inadmissible because it includes too much information,
but the absence of a business record does not present this
problem.
We therefore hold the trial court acted within its discretion
when admitting and subsequently relying on evidence that no
prior similar incidents occurred at the Americana. That resolves
our task in this appeal.
4
Here, for example, the incident report concerning plaintiff’s
injury includes statements from unidentified witnesses.
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DISPOSITION
The judgment is affirmed. Defendants shall recover their
costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, Acting P. J.
We concur:
MOOR, J.
KIM, J.
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