Eshaghian v. Marriott International










Filed 9/30/11 Eshaghian v. Marriott International CA4/2




NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

KHORSHID ESHAGHIAN, Plaintiff and Appellant, v. MARRIOTT INTERNATIONAL, INC., Defendant and Respondent.

E050988 (Super.Ct.No. INC070038) OPINION

APPEAL from the Superior Court of Riverside County. Harold W. Hopp, Judge. Reversed.
Law Offices of Lee Arter, Lee Arter, Steven M. Karp and John Worgul for Plaintiff and Appellant.
Creason & Aarvig, Maria K. Aarvig and Heather E. Kirk for Defendant and Respondent.
Plaintiff and appellant Khorshid Eshaghian sued defendant and respondent Marriott International, Inc. (Marriott), after she slipped and sustained injury at a Marriott hotel. The trial court granted summary judgment in favor of Marriott on the theory that plaintiff could not show that Marriott had notice of a dangerous condition at the hotel. Plaintiff appeals the judgment following the trial court’s granting of Marriott’s summary judgment motion. We reverse.
FACTS AND PROCEDURAL HISTORY
The underlying lawsuit arose out of an accident and injury that took place on September 12, 2005, when plaintiff fell while descending the lobby stairs at a Marriott hotel in Palm Desert, California. Plaintiff’s first amended complaint alleged that Marriott “negligently designed, constructed, owned, operated, managed, maintained, supervised and controlled [its] hotel . . . so as to proximately cause a quantity of water to gather on a stairway being used by plaintiff . . . .” Plaintiff slipped and fell on the stairs, injuring her left hand and arm.
Marriott moved for summary judgment, on the theory that plaintiff could make no showing that Marriott had notice of the alleged dangerous condition (e.g., water on the stairs). In support of its motion, Marriott appended the declarations of two employees: First, Michelle Hoffman, the inventory manager, averred that she was on break and had gone to the coffee shop in the lobby of the hotel to purchase a coffee. Having obtained her beverage, she crossed the lobby to return to her office, which was down some stairs to the boat dock level. Hoffman saw plaintiff, accompanied by plaintiff’s daughter and granddaughter, proceeding down the steps ahead of her. Plaintiff was carrying a shopping bag in her left hand, and trailing her right hand on the rail. Plaintiff fell when Hoffman was 10 to 12 feet behind plaintiff. As Hoffman went to aid plaintiff, Hoffman did not observe any water, foreign substances, or tripping hazards on the stairs. She “did not observe anything about the handrail that was out of order. Neither the steps nor the handrail were damp or slippery.” Hoffman’s declaration averred that she was “trained to be constantly vigilant for potential risks to guests.” She habitually looked around for things that might be dangerous to guests and on the day of the incident had not observed anything “that was out of order or which would have caused the staircase . . . to be slippery.”
Second, Gregory Perdue, the director of loss prevention at the hotel, averred that his job responsibilities “include supervision and management of all security issues at the resort, including inspection and reporting of potential risks to our guests.” At the time of the incident, Marriott had loss prevention employees, whose duty was to patrol all parts of the resort, including the area where plaintiff fell. The loss prevention staff “is trained to visually inspect the entire resort and to correct or report any situations they encounter.” Perdue had not received any report on the date of the incident, September 12, 2005, of “any spill, foreign substance, or dangerous condition in the lobby staircase” where plaintiff fell. The loss prevention employees would look for “spills, wet spots, litter as well as anything else that could be considered a hazard or dangerous to guests of the resort.” Marriott also had public area attendants employed to “inspect, clean, and take care of any irregularities they may find in the lobby,” including the area where plaintiff fell. Two public area attendants are on duty each day. No public area attendant reported any problems on the date of the incident. Marriott also had 1,200 employees at the resort, all of whom are instructed to report immediately, to a loss prevention employee or a public area attendant, any conditions that might cause harm to guests. No employees reported anything on the date of the incident. Finally, Perdue averred that, “At the time of the incident, there was no source of water which could have made the staircase wet or slippery.”
Plaintiff responded to the motion for summary judgment, pointing to the deposition testimony of both plaintiff and her daughter that water was present in the area of the fall. She also challenged Marriott’s declarations as conclusional. For example, Perdue’s averment that there was “no source of water” that could have made the steps wet was contradicted by other known facts: there was a splashing fountain nearby, and the steps plaintiff was traversing led to a boat dock on a lake or body of water. Marriott’s assertion that it had no notice of any dangerous condition, because its staff members were trained to inspect for hazards, did not demonstrate when any particular inspection had been done.
At the hearing on the motion, Marriott conceded there was a triable issue of fact as to whether there was a dangerous condition, inasmuch as the evidence was obviously in conflict about the condition of the steps where plaintiff fell. Rather, the motion proceeded solely on the basis that Marriott had had no notice of any such dangerous condition, and plaintiff was unable to show otherwise. Perdue’s declaration established that Marriott employees were trained to report if they found any hazards, and Perdue had received no reports on the day of the incident. However, plaintiff argued that there was no evidence to show that Marriott’s employees had actually complied with the inspection program duties. Ultimately, the trial court found “that defendants have shown there is no triable issue of material fact concerning whether defendants had notice of the alleged dangerous condition and therefore the motion for summary judgment is granted.” The court entered final judgment in favor of Marriott, and plaintiff appeals.
ANALYSIS
I. Standard of Review
In reviewing the propriety of an order granting summary judgment, we “apply the same three-step analysis required of the trial court. We begin by identifying the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine whether the moving party’s showing has established facts which justify a judgment in movant’s favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.” (Hernandez v. Modesto Portuguese Pentecost Assn. (1995) 40 Cal.App.4th 1274, 1279.) If there is no triable issue of material fact, “we affirm the summary judgment if it is correct on any legal ground applicable to this case, whether that ground was the legal theory adopted by the trial court or not, and whether it was raised by defendant in the trial court or first addressed on appeal.” (Jordan v. Allstate Ins. Co. (2007) 148 Cal.App.4th 1062, 1071.)
The critical steps in this analysis are the second and third: Was Marriott’s showing sufficient to justify a judgment in its favor‌ If so, was plaintiff’s showing in opposition sufficient to raise a triable issue of fact‌
II. Step One—Issues Framed by the Pleadings
Plaintiff’s first amended complaint alleged, as stated above, that Marriott was negligent in allowing “a quantity of water to gather on a stairway being used by Plaintiff . . . thereby causing Plaintiff to slip, fall and suffer . . . injuries and damages . . . .” These allegations were sufficient to tender the elements of the cause of action for negligence, including the elements of duty, breach, causation and damages. (Rest.3d Torts, § 6; Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 426.)^[1]
III. Step Two—Marriott’s Showing Was Insufficient to Entitle It to Judgment in Its Favor
“[A] store [or premises] owner is not an insurer of the safety of its patrons. Nevertheless, the owner does owe the patrons a duty to exercise reasonable care in keeping the premises reasonably safe.” (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476, citing Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) As the California Supreme Court explained in Ortega, a store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers. (Ortega v. Kmart Corp., at p. 1205.) The care required is commensurate with the risks involved. (Ibid.) Thus, for example, if the owner operates a self-service grocery store, where customers are invited to inspect, remove, and replace goods on shelves, the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed. The owner must safeguard against the possibility that such a customer may create a dangerous condition by disarranging or dropping the merchandise. (Ibid.) “ ‘However, the basic principle to be followed in all these situations is that the owner must use the care required of a reasonably prudent [person] acting under the same circumstances.’ ” (Ibid.)
Again, as explained in Ortega, “Because the owner is not the insurer of the visitor’s personal safety [citation], the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1206.) This is the critical issue here: whether Marriott had notice, either actual or constructive, of the dangerous condition of the premises. “In the absence of actual or constructive knowledge of the dangerous condition, the owner is not liable.” (Moore v. Wal-Mart Stores, Inc., supra, 111 Cal.App.4th at p. 476.)
In terms of proof at trial, “the plaintiff need not show actual knowledge 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. [Citation.] Whether this condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury. [Citation.] There are no exact time limits. Rather, each accident must be viewed in light of its own unique circumstances. [Citation.] [¶] Thus, where, as in Ortega, there is no direct evidence of the length of time the dangerous condition existed, the plaintiff can demonstrate the store owner had constructive notice of the dangerous condition by showing that the site had not been inspected within a reasonable period of time. [Citation.] In other words, the plaintiff may raise an inference that the condition existed long enough for the owner to have discovered it. [Citation.] ‘It remains a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care.’ [Citation.] Nevertheless, it is still the plaintiff who has the burden of producing evidence and who must prove that the owner had constructive notice of the hazardous condition. [Citation.]” (Moore v. Wal-Mart Stores, Inc., supra, 111 Cal.App.4th at p. 477, citing Ortega v. Kmart Corp., supra, 26 Cal.4th at pp. 1212-1213.)^[2]
Here, on a motion for summary judgment, Marriott as the moving party had the initial burden of affirmatively negating the possibility that plaintiff could show that Marriott had actual or constructive notice of a dangerous condition of the stairs where plaintiff fell. It attempted to do so by outlining its policies of inspection and reporting. On this point, the primary evidence consisted of the declaration of Gregory Perdue, the director of loss prevention.
Perdue averred that Marriott “employed Loss Prevention Personnel to patrol the entire resort, including the area in question in this lawsuit. During the course of the day, there were at [sic] three individuals from my department out on patrol. My staff is trained to visually inspect the entire resort and to correct or report any situations they encounter. This was conducted 24 hours per day and seven days per week throughout the year. No report was made on September 12, 2005 of any spill, foreign substance, or dangerous condition in the lobby staircase where [plaintiff fell]. The Loss Prevention Officers[’] duties would include looking for spills, wet spots, litter as well as anything else that could be considered a hazard or dangerous to guests of the resort.”
In addition to the loss prevention agents, according to Perdue, Marriott had “also employed Public Area Attendants to inspect, clean, and take care of any irregularities they may find in the lobby and including the area where the plaintiff [fell]. During the course of the day, there are two Public Area Attendants on duty. No Public Area Attendant reported any problems on September 12, 2005.”
Perdue also averred that “every employee at the resort is trained and instructed to be on the lookout for conditions which might cause harm to guests. If such conditions are noticed, they are instructed to immediately inform Loss Prevention or a Public Area Attendant who will address the issue. The resort employs approximately 1,200 people. No such problem was observed or reported by any employee on the date of the incident.”
Finally, Perdue declared that, “At the time of the incident, there was no source of water which could have made the staircase wet or slippery.”
As plaintiff pointed out at the hearing on the motion, Perdue’s declaration may have been sufficient to establish that Marriott had some kind of inspection program or training in inspection. “[H]ere we have Mr. Perdue saying, ‘We have a program in place and this is what is supposed to happen.’ ” However, plaintiff argued, Perdue’s declaration was insufficient to establish with any certainty what the parameters of the inspection program were, so as to negate all possibility of constructive notice.
At the hearing, for example, plaintiff urged, “But when I looked at the moving papers . . . I kept looking for a declaration from an employee or something akin to sweep sheets” and did not find any such information. Perdue’s declaration “does not describe a written reporting system at all. He says that there is a program of inspection, and this is what employees are supposed to do. [¶] . . . [L]et’s assume for the sake of argument that there is an absence of a [report]. But that does not mean that there is someone who is actually going out there who would be in a position to make the report if they saw something . . . to put it another way, something akin to a sweep sheet or something that documents that these folks were actually doing what Mr. Perdue says they were supposed to be doing . . . . [¶] He just says, ‘I don’t have a report.’ But then again he does not say, ‘We have documentation,’ ‘There is documentation for that day, and these people are supposed to report it in writing if there is something wrong,’ and they don’t.” Perdue’s declaration did not state “that he is the person that necessarily would be reported to. He does not say there is a regular, daily, hourly—whatever it might be—system of reporting. There is nothing like that produced, and we don’t have the employees who presumably are doing the inspections and saying that they did the inspections and when they did the inspections.”
Plaintiff pointed out that the Marriott employees were supposed to carry out inspections, “but there is no proof before the Court that that is what they did. And the only way Mr. Perdue would know—if, hypothetically he wants to say ‘This is what I understand that they did,’ that would be hearsay because they would have to tell him, and we would have an out-of-court statement from these unknown employees offered to the Court in a motion for summary judgment to prove the truth of the matter asserted; that is, that they did what they were suppose[d] to do.”
There were no business records produced, and nothing to document what Marriott’s inspection procedures in fact were. Plaintiff argued that “we don’t have the people who actually did the inspections saying, ‘I did an inspection. I did it at such and such a time.’ ”
Perdue averred that the inspections were ongoing “24 hours per day, and seven days per week throughout the year,” and “[d]uring the course of the day,” but nothing affirmatively showed who inspected what at any particular time. As the court itself queried, “[is there a]ny evidence that those folks actually did what they were supposed to do‌” Marriott’s counsel admitted, “There is no evidence either way.” Plaintiff argued that “there has to be not only a conceptual program but an actual program of regular [inspection],” but there was no evidence to show what the actual program’s features were, nor how compliance was ascertained.
The California Supreme Court in Ortega, concluded that, “evidence of the owner’s failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give the owner the opportunity to discover and remedy it. [Citation.]” (Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1203.) The evidence in Ortega was sufficient to show that the owner had failed to inspect the store aisle for at least 15 to 30 minutes, and perhaps as much as two hours, before the plaintiff’s accident (slipping on a puddle of milk). (Id. at pp. 1209-1210.)
In Ortega, the plaintiff’s maintenance expert had opined that a store “should implement three basic management tools relevant to floor maintenance: (1) accountability (the name of the person who performs the inspections should be identified); (2) frequency (management should know how often the floor is inspected); and (3) verification (a written record or some other form of verification should be presented to management). (Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1204.)
Here, the Perdue declaration does indicate there was some policy or procedure of safety inspection, but it fails to establish the specific details of the policy or procedure, and it fails to show actual execution of Marriott’s inspection program or policy. Using the criteria from Ortega as an example, Perdue’s declaration included no facts relating to accountability, no evidence of frequency, and no means of verification of the inspection program.
As to accountability, Perdue declares that three loss prevention employees were on patrol on the date of the accident, and that there were two public area attendants charged with inspecting the lobby area, including the place where plaintiff fell. Singularly absent from Perdue’s declaration, however, is any information to identify any such employees. It is impossible to tell, on the basis of Perdue’s affidavit, who was on duty, where they were at any particular time, or what they did.
As to frequency, the Perdue declaration baldly asserts in the most generic terms, that inspections occurred throughout the entire resort, 24 hours a day, seven days a week, for the entire year. Such a broad statement is insufficient to demonstrate that, at a particular place and time, inspections actually were carried out as required under the company’s policy. It amounts to no more than a hyperbolic claim that 100 percent of the employees inspected 100 percent of the property, 100 percent of the time. That simply cannot be true.^[3]
As to verification, Marriott produced nothing to show how inspections are actually conducted, and what the normal record-keeping procedures were. Perdue asserted an absence of reports but, as plaintiff pointed out at the hearing, “we don’t know what their reporting system is.” Perdue had averred that there were no reports, but the questions remained, “ ‘Do you have reports at all‌ Do you have a reporting system‌ Do you have a written system of documentation that would suggest that there was something that was done‌’ ” The court suggested that “it sounds like the argument is ‘There is something that is not in our business records, and that’s evidence that there was not anything to report.’ ” As plaintiff argued, however, “where are the business records and what are they‌” The Perdue declaration did not identify the procedure or method of reporting, nor the interval of inspection; it was not possible to know, on the basis of Perdue’s declaration, who did what or when.
The Perdue declaration was virtually the only evidence presented on the issue of constructive notice, but there were serious problems with the matters asserted. First, the declaration was demonstrably unreliable, at least in part. Perdue’s claim that there was no possible source of water or other liquid spillage was flatly contradicted both by evidence presented by plaintiff, and by common knowledge. At least two water features were nearby, and many people could be expected to traverse the area carrying liquids subject to spillage. Second, the declaration was both vague and overbroad. Although Perdue asserted that some (unidentified) employees were charged with a duty to inspect for hazards, and that no reports of hazard were made on the date in question, there was no specific information to indicate when the stairs where plaintiff fell had last been inspected by anyone. This showing was insufficient to preclude the possibility that some hazard existed on the stairs long enough for the trier of fact to infer constructive notice. The claim, to the effect that all the employees were charged with the duty to report hazards anywhere on the premises, 24 hours a day, seven days a week, throughout the year, was so overbroad as to be meaningless. If Perdue’s declaration were to be read as claimed, it would establish, ipso facto, not only that there was no liquid or other hazard on the stairs at the time that plaintiff fell, but that, unless the matter was affirmatively reported, there could have been no hazards of any kind—no litter, no spills, no obstructions—anywhere in the resort at any time. Such a claim is frankly unbelievable.
In short, the evidence Marriott presented in support of its motion for summary judgment was insufficient to preclude the existence of a triable issue of fact on the question of constructive notice of a hazard in the area where plaintiff fell. From the evidence presented, it is not possible to tell who had last inspected the stairs where plaintiff fell, and when they might have done so. The absence of a report of any hazard, in isolation from information about the time of any inspection, is insufficient to demonstrate that there was no hazard, or that no hazard could have existed on the stairs long enough so that it reasonably should have been discovered.
The trial court therefore erred in granting summary judgment in favor of Marriott.
IV. Step Three—We Need Not Address the Third Step of the Analysis
Because the moving party’s showing in support of the motion for summary judgment was insufficient to justify granting a judgment in its favor, we need not be detained by the third step of the analysis—whether plaintiff nonetheless was able to show the existence of a triable issue of material fact. Marriott’s moving papers did not negate the existence of a triable issue of material fact on the question of constructive notice. Marriott did not show that anyone had actually carried out an inspection of the lobby stairs where plaintiff fell, so as to preclude the possibility that a hazard in fact existed for a long enough period of time for Marriott to have reasonably discovered it.
DISPOSITION
Marriott’s showing in favor of summary judgment did not preclude the existence of a triable issue of material fact on the question of constructive notice of a hazard. Marriott conceded the existence of a triable issue of material fact on the actual existence of a dangerous condition on the stairs. Thus, the trial court erred in granting summary judgment in favor of Marriott. The judgment is therefore reversed.
Plaintiff is awarded her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER
Acting P. J.


We concur:


RICHLI
J.


KING
J.


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