Brown v. Starwood Hotels & Resorts Worldwide CA2/7

Filed 11/17/21 Brown v. Starwood Hotels & Resorts Worldwide CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
MARY BROWN, B304363
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC665796)
v.
STARWOOD HOTELS &
RESORTS WORLDWIDE,
INC.,
Defendant and
Respondent.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Kristin S. Escalante, Judge. Affirmed.
Vaziri Law Group, Siamak Vaziri and Mark J. Giannamore
for Plaintiff and Appellant.
Murchison & Cumming and Edmund G. Farrell for
Defendant and Respondent.
Mary Brown appeals the judgment entered after the trial
court granted summary judgment in favor of Starwood Hotels &
Resorts Worldwide, Inc. in Brown’s premises liability and
negligence lawsuit. Brown’s principal contention on appeal is
that the trial court should have imposed evidentiary and issue
sanctions and denied summary judgment because Starwood
failed to preserve surveillance video footage of her fall at a
Starwood-managed facility. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Brown’s Fall
In late June 2015 Brown was staying at the Sheraton
Fairplex Hotel & Conference Center (Sheraton Fairplex) in
Pomona with her great-granddaughter, who was participating in
a beauty pageant being held at the conference center. Starwood
1
managed the Sheraton Fairplex during the relevant time period.
At 1:30 p.m. on the last day of her stay, Sunday, June 28, 2015,
Brown tripped as she was leaving the conference center and fell
into the glass doors at the entryway and onto the hard surface
(terrazzo) interior floor. Paramedics were called, and Brown was
taken to the Pomona Valley Hospital for X-rays and treatment.
1
A separate entity, Fairplex, owned the building where
Brown fell. The facility was managed by Starwood, which owned
the Sheraton brand. As reported in its 2016 Form 10-K, in
September 2016 Marriott International, Inc. completed the
acquisition of Starwood Hotels & Resorts Worldwide, Inc.
(Marriott Financial Reports and Proxy [as
of Nov. 17, 2021], archived at .
2
2. Brown’s Lawsuit
On June 20, 2017 Brown filed an unverified complaint
against Starwood for premises liability and negligence. In her
complaint Brown alleged, when she was walking out of the
conference center on June 28, 2015, she tripped on a foreign
object that had been left unattended on the floor, creating a
dangerous condition. Brown further alleged Starwood failed to
maintain the floors of the conference center in a reasonably safe
condition, and Starwood knew, or in the exercise of reasonable
care should have known, a foreign object on the floor in an area
where hotel and conference center guests walked created an
unreasonable risk of harm to its guests.
In special interrogatory responses served in March 2018,
Brown averred that, while leaving the conference center, she
“tripped on a mat, that was misshapen, misplaced, unsecured or
otherwise defective, in front of Defendant’s doorway. [Brown] fell
forward striking her head and body on Defendant’s glass door.”
3. Brown’s Deposition
Starwood deposed Brown on May 8, 2018. Brown testified
she was walking across the hard floor surface toward the doors to
leave the conference center, looking straight ahead to the outside,
when she felt a “catching feeling” and started to fall forward. She
described her feet as going three or four steps forward in
“perpetual motion” as she tried to stop herself. Her head, left
shoulder and right arm or shoulder hit the glass sliding doors,
and she fell to the ground.
Brown testified she believed there was a mat on the hard
surface floor leading to the conference center entrance,
approximately three to five feet from the door. However, Brown
explained that before the fall she was not looking at the ground
3
and does not recall seeing a mat on the floor. Nor was she aware
she was crossing a mat when her foot caught. Once she had
fallen, she did not look around to see what may have caused her
to fall. Brown also had no recollection of a mat being on the floor
inside the sliding glass doors at the entrance to the convention
center at any time during the three days she was attending the
pageant with her great-granddaughter.
At the time of her fall Brown was wearing Sketchers
walking shoes with a rip toward the right heel, a tear forming on
the left heel and significant wear on both shoes near the toe.
4. Starwood’s Motion for Summary Judgment
The month after Brown’s deposition Starwood moved for
summary judgment or, in the alternative, summary adjudication
as to each of Brown’s two causes of action, asserting there was no
evidence the area where Brown fell was unreasonably slippery or
contained any material or object that created a danger of slipping
or tripping. Accordingly, Starwood argued, Brown could not
prove breach of duty or causation.
In addition to portions of Brown’s deposition testimony
explaining she had not seen a mat before, during or after her fall,
Starwood’s supporting papers included excerpts from the
deposition testimony of Sheraton employee Charles Bakewell,
who arrived at the accident scene approximately two minutes
after Brown fell. Bakewell testified he checked the interior
terrazzo floor where the accident had occurred, as well as the
surrounding area, when he arrived to determine what may have
caused Brown’s fall, specifically looking for a mat, debris or
spilled water. He did not see anything that could have
contributed to the fall. Bakewell had not received any complaints
about the flooring, entryway or front doors prior to Brown’s fall.
4
In a declaration submitted with Starwood’s moving papers,
Paolo Dimailig, the manager on duty, similarly stated he learned
of Brown’s fall within a few minutes of the incident and walked
over to the conference center where Brown was receiving medical
attention while still sitting on the floor. Dimailig inspected the
hard surface floor at and near where Brown fell and did not see
any mats, debris, water or any other noticeable substances that
could have contributed to the fall.
In his deposition testimony Bakewell reported there was
surveillance video footage of the fall (approximately 10 seconds
long), which he reviewed within two hours of the incident.
Bakewell did not ask anyone to retain the video footage,
explaining, “That is not something my position would.” The
2
footage was not preserved.
2
Bakewell testified the video footage captured Brown’s full
body, from her head to her feet, as she approached the front
entrance to the conference center. Brown appeared to be
“shuffl[ing]” toward the entrance: “It didn’t look like she was
picking up her feet. A little bit of a side to side motion when she
walked.” As far as Bakewell could tell, “she tripped on her own
feet. . . . There were no debris, no mats, no water. The area was
clean and clear. And many other guests had been using the same
area that day.” Asked by Brown’s counsel to do so, Bakewell
estimated Brown was about five feet two inches tall and weighed
more than 200 pounds.
In her response to Starwood’s separate statement Brown
“disputed” Starwood’s use of this testimony because the video
footage had not been preserved and stated she would seek to
exclude the testimony on that basis. However, the record on
appeal does not include any written objections by Brown to
Starwood’s evidentiary presentation, and it does not appear any
5
According to the deposition testimony of Roger Martinez,
director of engineering at the time of the incident, the
surveillance cameras were controlled by Fairplex, which owned
the convention center, not Starwood (or Sheraton). Martinez did
not request the video be preserved because “I didn’t know that we
can get sued.” There was no protocol in place to preserve video
footage of all incidents in which a guest was injured. When
Martinez learned of Brown’s lawsuit, he contacted Fairplex and
was informed surveillance video was preserved for only 30 days.
5. Brown’s Opposition to the Motion
In her opposition to the motion Brown argued her
testimony that she believed her foot caught on a mat as she was
leaving the conference center was sufficient to defeat summary
judgment, contending, “While defendant offers a declaration and
deposition testimony that a trip hazard was not seen, it does not
rule out that plaintiff caught her foot on some dangerous
condition on the hardwood floor.”
In addition, Brown argued Starwood’s failure to preserve
the surveillance video footage of her fall constituted spoliation of
evidence that, even if not intentional, warranted the imposition of
issue and evidentiary sanctions, “including the striking of
Mr. Bakewell’s testimony and a finding that a dangerous
condition caused plaintiff to fall at the hotel conference center.”
Brown’s opposition papers included excerpts from her deposition
and from the depositions of Bakewell and Martinez.
In its reply memorandum in support of the motion,
Starwood argued there is no requirement under California law
were filed, as required by California Rules of Court,
rules 3.1352(1) and 3.1354.
6
that evidence be preserved prior to the filing of a lawsuit,
particularly where, as here, the evidence is in control of another
entity (Fairplex).
6. The Trial Court’s Order Granting Summary Judgment
The trial court granted Starwood’s motion for summary
judgment. The court ruled Starwood had carried its initial
burden with a prima facie showing there was no floor mat or any
other impediment that caused Brown’s fall and Brown had failed
to present evidence sufficient to raise a genuine issue on that
point. The court explained Brown had admitted in her deposition
that she did not see a floor mat and had no present recollection
one was there and provided no other evidence regarding the
presence of any impediment that caused the fall. Her speculation
as to the reason for her fall, the court continued, is not sufficient
to raise an inference that a dangerous condition was present.
The trial court rejected Brown’s arguments that Starwood’s
failure to preserve the surveillance video gave rise to an inference
a dangerous condition existed or, as spoliation of evidence,
justified an order establishing liability as an issue sanction,
ruling Brown had failed to show Starwood had a duty to preserve
3
the video footage at the time it was destroyed. Brown did not
3
Noting the surveillance cameras and video footage were
controlled by “Fairplex,” which in the regular course of business
retained such footage only for 30 days, the court explained no
evidence had been presented regarding the relationship between
Fairplex and Starwood, specifically whether Fairplex was a
separate entity or shorthand for the Sheraton Fairplex Hotel &
Conference Center, which was owned and controlled by Starwood.
The court assumed for purpose of ruling on the motion that
Starwood controlled Fairplex.
7
send an evidence preservation demand letter or otherwise
provide notice she intended to assert a claim against the hotel
prior to the time the video was overwritten or otherwise
destroyed, the court wrote; and she provided no evidence of
willful suppression of evidence within the meaning of Evidence
Code section 413. “Plaintiff has provided no authority for the
proposition that Defendant had a duty to collect, retain and
preserve all evidence related to the incident and to suspend all
normal record recycling procedures before Plaintiff put Defendant
on notice that she intended to assert a claim and in the absence
of any request to preserve evidence.” Finally, because “[t]here
has been no showing of an abuse of the discovery process,” the
court ruled Brown was not entitled to evidentiary or issue
sanctions.
DISCUSSION
1. Standard of Review
A motion for summary judgment is properly granted only
when “all the papers submitted show that there is no triable
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” (Code Civ. Proc., § 437c,
subd. (c).) We review a grant of summary judgment de novo
(Samara v. Matar (2018) 5 Cal.5th 322, 338) and, viewing the
evidence in the light most favorable to the nonmoving party
(Regents of University of California v. Superior Court (2018)
4 Cal.5th 607, 618), decide independently whether the facts not
subject to triable dispute warrant judgment for the moving party
as a matter of law. (Hampton v. County of San Diego (2015)
62 Cal.4th 340, 347; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th
610, 618.)
8
To the extent Brown’s opposition to the summary judgment
motion can be deemed to include a request for evidentiary
sanctions, we review the trial court’s ruling under the deferential
abuse of discretion standard. (Van v. LanguageLine Solutions
(2017) 8 Cal.App.5th 73, 80 [“[o]rders imposing discovery
sanctions are reviewed under the abuse of discretion standard
and are subject to reversal only for arbitrary, capricious, or
whimsical action”]; accord, Department of Forestry & Fire
Protection v. Howell (2017) 18 Cal.App.5th 154, 191; see Williams
v. Russ (2008) 167 Cal.App.4th 1215, 1224 [trial court’s sanction
order followed alleged spoliation of evidence reviewed for abuse of
discretion]; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999)
75 Cal.App.4th 486, 496-497 [same].)
2. The Trial Court Properly Granted Starwood’s Motion for
Summary Judgment
“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.”’ [Citation.] But the duty arising
from possession and control of property is adherence to the same
standard of care that applies in negligence cases.” (Kesner v.
Superior Court (2016) 1 Cal.5th 1132, 1158; see Alcaraz v. Vece
(1997) 14 Cal.4th 1149, 1156 [“‘[t]he proper test to be applied to
the liability of the possessor of land . . . is whether in the
management of his property he has acted as a reasonable man in
view of the probability of injury to others’”].)
9
Brown’s lawsuit, asserting causes of action for premises
liability and negligence against Starwood, required her to prove
an unsafe or dangerous condition existed at the convention center
where she slipped and fell and Starwood knew, or should have
known, of the existence of that condition. (See Taylor v. Trimble
(2017) 13 Cal.App.5th 934, 943-944 [“An owner of real property is
‘not the insurer of [a] visitor’s personal safety . . . .’ [Citation.]
However, an owner is responsible ‘“for an injury occasioned to
another by [the owner’s] want of ordinary care or skill in the
management of his or her property. . . .”’ [Citation.] Accordingly,
landowners are required ‘to maintain land in their possession
and control in a reasonably safe condition,’ [citation] and to use
due care to eliminate dangerous conditions on their property”];
Howard v. Omni Hotels Management Corp. (2012)
203 Cal.App.4th 403, 432 [“The fact that an accident occurred
does not give rise to a presumption that it was caused by
negligence. [Citation.] Instead, the injured plaintiff must
establish sufficient facts or circumstances that support an
inference of a breach of duty, to defeat a summary judgment
motion by a defendant that is asserting due care was exercised”];
see also CACI No. 1001: Basic Duty of Care [“A person who
[owns or controls] property is negligent if that person fails to use
reasonable care to keep the property in a reasonably safe
condition. A person who [owns or controls] property must use
reasonable care to discover any unsafe conditions and to repair,
replace, or give adequate warning of anything that could be
reasonably expected to harm others”].)
Brown contends the trial court erred in concluding she
failed to demonstrate a triable issue of material fact regarding a
dangerous condition because, with the imposition of appropriate
10
issue and evidentiary sanctions, Starwood could not have
contested liability and, in any event, her discovery responses
created a sufficient conflict regarding the presence of an unsafe
condition to defeat summary judgment. Neither argument has
merit.
a. Starwood’s failure to preserve the surveillance video
did not create a triable issue of material fact
In Cedars-Sinai Medical Center v. Superior Court (1998)
18 Cal.4th 1 (Cedars-Sinai) the Supreme Court held there does
not exist a separate tort cause of action for intentional spoliation
of evidence—the intentional destruction or suppression of
evidence—when the alleged intentional spoliation is committed
by a party to the underlying cause of action to which the evidence
is relevant and when the spoliation is, or reasonably should have
been, discovered before the conclusion of the underlying
litigation. (Id. at p. 4.) Acknowledging that “[t]he intentional
destruction of evidence is a grave affront to the cause of justice
and deserves our unqualified condemnation,” the Court held it
was “preferable to rely on existing nontort remedies rather than
creating a tort remedy.” (Ibid.) In particular, the Court
explained that Evidence Code section 413 and standard civil jury
instructions authorized the finder of fact to consider willful
suppression of evidence when evaluating the inferences to be
drawn from the evidence presented (Cedars-Sinai, at p. 12) and
“potent” sanctions, including issue sanctions, evidence sanctions
and terminating sanctions, are available under the discovery
statutes for misuse of the discovery process. (Ibid.) The Court
observed, “Destroying evidence in response to a discovery request
after litigation has commenced would surely be a misuse of
discovery within the meaning of [Code of Civil Procedure former]
11
section 2023, as would such destruction in anticipation of a
discovery request.” (Ibid.)
Glossing over the willful nature of the spoliation discussed
by the Supreme Court in Cedars-Sinai, supra, 18 Cal.4th 1—that
is, intentional destruction with the intent to suppress evidence
notwithstanding a discovery demand—Brown suggests any
failure to preserve material that might later be relevant in a
lawsuit constitutes spoliation and warrants imposition of
evidentiary and issue sanctions. She cites no California law for
this novel proposition, and the two federal cases cited do not
support her argument.
In Zubulake v. UBS Warburg LLC (S.D.N.Y. 2003)
220 F.R.D. 212, an employment discrimination case, the federal
district court ruled the “trigger date” for the preservation of
evidence was when litigation was reasonably anticipated.
“Merely because one or two employees contemplate the possibility
that a fellow employee might sue does not generally impose a
firm-wide duty to preserve. But in this case, it appears that
almost everyone associated with Zubulake recognized the
possibility that she might sue. . . . [¶] Thus, the relevant people
at UBS anticipated litigation in April 2001. The duty to preserve
attached at the time that litigation was reasonably anticipated.”
(Id. at p. 217.) Similarly, in Silvestri v. General Motors Corp. (4th
Cir. 2001) 271 F.3d 583, 591 the Court of Appeals held, “The duty
to preserve material evidence arises not only during litigation but
also extends to that period before the litigation when a party
reasonably should know that the evidence may be relevant to
anticipated litigation.”
Here, the evidence was that none of the Starwood
employees who responded to the accident scene saw any
12
indication of a dangerous or unsafe condition that may have
contributed to Brown’s slip and fall. Thus, neither they nor their
employer had any reason to anticipate a lawsuit by Brown in
June or July 2015. Moreover, there was no evidence Starwood’s
failure to request that Fairplex retain video footage of the
accident violated any formal corporate policy or informal practice
4
at the conference center. Accordingly, the trial court’s ruling
that Starwood had no duty to preserve evidence prior to notice
that Brown intended to file a lawsuit, which occurred nearly
two years after the surveillance video was overwritten, was well
within its discretion. There was no intentional, prelitigation
spoliation or misuse of the discovery process that would justify
imposition of sanctions pursuant to Code of Civil Procedure
section 2023.030. (Cf. Williams v. Russ, supra, 167 Cal.App.4th
at p. 1227 [ample evidence supported finding that client
intentionally destroyed his file while legal malpractice case was
pending; because client did not establish lawyer could reconstruct
the missing file, terminating sanction for the misconduct was not
an abuse of discretion].)
b. Brown’s interrogatory response and deposition
testimony did not create a triable issue of material
fact
In verified responses to special interrogatories Brown
stated she tripped on a defective or unsecured mat in front of the
entrance to the conference center. Similarly, at her deposition
Brown testified she believed her foot caught on a mat that was
4
Given the litigious nature of our society, it certainly would
have been prudent for Starwood to retain video evidence of all
accidents regardless of apparent fault. However, lack of foresight
is not a ground for sanctions.
13
placed three to five feet in front of the entryway. That evidence,
Brown contends, was sufficient to create a triable issue of
material fact concerning the existence of a dangerous condition
that caused her fall.
“There is a triable issue of material fact if, and only if, the
evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in
accordance with the applicable standard of proof.” (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord, Arvizu
v. City of Pasadena (2018) 21 Cal.App.5th 760, 763 [“[a] triable
issue of fact exists if the evidence would allow a reasonable trier
of fact to find the fact in favor of the party opposing summary
judgment”].) Brown’s meager evidence concerning the existence
of a mat or other foreign object that caused her foot to catch falls
far short of satisfying this standard.
Although Brown’s special interrogatory responses stated
she tripped on a mat, at her deposition Brown testified only that
she believed a mat was on the floor several feet in front of the
entryway. When questioned further, Brown acknowledged she
did not recall actually seeing a mat, either before or after the fall,
and had no awareness she was walking on a mat when she felt
her foot catch on something. Brown did not submit a declaration
in opposition to the summary judgment motion to reinforce her
interrogatory response, explain the basis for her belief, as
expressed at her deposition, that a mat was responsible for her
fall or provide any other support for her contention a dangerous
condition existed at the convention center entrance. (Cf. Code
Civ. Proc., § 2030.410 [precluding responding party’s use of her
own interrogatory answers].)
14
Citing to pages in the clerk’s transcript containing
six photographs that were part of Starwood’s evidence in support
of its motion (exhibits identified at Brown’s deposition), Brown
asserts in her opening brief that she presented in opposition to
Starwood’s motion “photographic evidence that a floor mat had
been present at the accident scene,” stating these “post-accident
photographs of the area of the fall reveal the outline, residue,
dust and debris that the border of a floor mat leaves when it is
picked up from the floor.” However, there is no reference to these
photographs in Brown’s opposition to the summary judgment
motion, and her briefs in this court do not cite any portion of the
record that confirms her claim she presented the evidence to the
trial court. In addition, Brown in her appellate briefing does not
explain what in the photographs suggests a mat had been present
and removed. (See generally Guthrey v. State of California (1998)
63 Cal.App.4th 1108, 1115 [“‘reviewing court is not required to
make an independent unassisted study of the record in search of
error or grounds to support the judgment’”]; Mansell v. Board of
Administration (1994) 30 Cal.App.4th 539, 545-546 [not role of
reviewing court to act as “backup counsel” for appellant].)
For his part, Bakewell testified he was on the scene within
two minutes of the fall and specifically looked for anything
(objects, debris or water) that might have contributed to the
accident. He found nothing. Similarly, Dimailig arrived within
minutes (while Brown was being treated by emergency
paramedics) and also saw nothing on the floor at or near where
Brown fell.
Even when viewed most favorably to Brown and without
considering Bakewell’s description of Brown’s fall as recorded on
15
5
the surveillance video, the evidence before the trial court was
insufficient to establish a prima facie case a dangerous or unsafe
condition existed where she fell. (See Howard v. Omni Hotels
Management Corp., supra, 203 Cal.App,4th at p. 432 [to defeat a
summary judgment motion by a defendant asserting it exercised
due care, “[i]t is not enough for the plaintiff to provide
speculation or conjecture that a dangerous condition of property
might have been present at the time of the accident”]; Benavidez
v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860 [“‘[i]n
determining whether any triable issue of material fact exists, the
trial court may, in its discretion, give great weight to admissions
made in deposition and disregard contradictory and self-serving
affidavits of the party’”]; cf. Shin v. Ahn (2007) 42 Cal.4th 482,
500, fn. 12 [“a party cannot create an issue of fact by a
declaration which contradicts his prior discovery responses”]; see
generally D’Amico v. Board of Medical Examiners (1974)
11 Cal.3d 1, 21 [where “‘there is a clear and unequivocal
admission by the plaintiff, himself [or herself], in his [or her]
deposition . . . we are forced to conclude there is no substantial
evidence of the existence of a triable issue of fact,’” italics
omitted].)
“[A]ll appellant can argue is that she slipped and fell. She
lost her balance for some unknown reason. She did not see
5
As noted, although Brown “disputed” Bakewell’s
description of her fall because the surveillance video had not been
preserved, she did not object to the evidence, which would appear
to be admissible as oral testimony of the content of a writing
under Evidence Code section 1523, subdivision (b), provided the
footage had been lost or destroyed “without fraudulent intent on
the part of the proponent of the evidence.”
16
anything on the floor which caused her to slip and fall and did
not know what caused her to slip. In such a situation,
‘[n]egligence is never presumed.’” (Buehler v. Alpha Beta Co.
(1990) 224 Cal.App.3d 729, 734.) Summary judgment was
properly granted.
DISPOSITION
The judgment is affirmed. Starwood is to recover its costs
on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
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