Philadelphia Indemnity Insurance Company vs. Kelsey Walters

Opposition

Cal. Super. - 4th Dist.February 24, 2016

R O B I N S O N DI L A N D O A Pr of es si on al La w Co rp or at io n Lo s An ge le s, Ca li fo rn ia Ov @® ~N oO Ut sh Ww a pe d R N R DN N N N R R N D ee pe d ed pe d pe d fe d pe d fe ed fe d pe d Q s N I N Ul W N = D W N y Ww N O Michael Robinson, Esq. (SBN 120308) Orion S. Robinson, Esq. (SBN 293796) Perry E. Rhoads, Esq. (SBN 209812) ROBINSON DI LANDO A Professional Law Corporation 800 Wilshire Boulevard, Suite 750 Los Angeles, CA 90017-2687 Telephone: (213) 229-0100 Facsimile: (213) 229-0114 Email: prhoads@rdwlaw.com Attorneys for Plaintiff, PHILADELPHIA INDEMNITY INSURANCE COMPANY SUPERIOR COURT OF THE STATE OF CALIFORNIA ELECTRONICALLY FILED Superior Court of California, County of Orange 1172472017 at 11:50:00 Av Clerk of the Superior Court By & Clerk, Deputy Clerk COUNTY OF ORANGE ~ CENTRAL JUSTICE CENTER PHILADELPHIA INDEMNITY Case No. 30-2016-00837200-CU-PO-CJC INSURANCE COMPANY, (Hon. Melissa McCormick, Dept. C13) Plaintiff, PLAINTIFI’S OPPOSITION TO MOTION VS. FOR SUMMARY JUDGMENT KELSEY WALTERS, an individual; [Filed concurrently with Plaintiff's Separate DANIEL MARTIN; an individual; and Statement in Opposition to Motion for Summary DOES 1 through 50, Inclusive, Judgment and Plaintiff's Evidence in Support of Opposition to Motion for Summary Judgment] Defendants. MSJ Date: December 7, 2017 Time: 1;30 p.m. Dept.: C13 Action Filed: February 24, 2016 Trial Date: January 22, 2017 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Plaintiff, PHILADELPHIA INDEMNITY INSURANCE COMPANY (“Plaintiff”) submits the following Opposition to Defendant KELSEY WALTERS’ (“Walters”) Motion for Summary Judgment in this matter. 1 If -1- PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT R O B I N S O N D I L A N D O A Pr of es si on al La w Co rp or at io n Lo s An ge le s, Ca li fo rn ia D e N T O y U T o R W N N O R M O N N N N R N RE e d e d pe l pe d pe d pe d fe d fe d pe d «we N N U r o k W N = S O N N Y U T sh L N = OD MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION This is a subrogation action for damages arising out of flooding caused by the defendant guests using a shower at the Plaintiff insured’s hotel, On or about March 28, 2014, Defendants Daniel Martin (“Martin”) and Kelsey Walters (“Walters”) rented a room from Gotham Management LLC Keating Hotel, located at 432 F Street, San Diego, California. That night, after several drinks by both defendants, Martin fell asleep in the shower of the rented room with the water running. While Defendant Martin and Walters were sleeping, the shower overflowed, sending water throughout the hotel premises and causing substantial water damage in Plaintiff's hotel property. Walters and Daniel were the only two people known to have been occupying the room at the time of the flooding. IL. A CONTINUANCE OF THIS MOTION IS NECESSARY AND PROPER TO ALLOW ADDITIONAL TIME FOR PLAINTIFF TO DEPOSE DANIEL MARTIN TO OBTAIN FACTS ESSENTIAL TO THE OPPOSITION. C.C.P. 437c provides for a continuance of a motion for summary judgment when further discover is necessary to oppose the motion. “If it appears from the affidavits submitted in opposition to a motion for summary judgment or surnmary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. C.C.P. 437c(h). Facts essential to justify Plaintiff's opposition to Walter's motion for summary judgment cannot be presented until Defendant Martin appears for his deposition. The only factual support for Walters’ summary judgment motion comes from Walters’ supporting declaration. It is crucial that Martin (the only other person believed to have been occupying the hotel room on the night of the flooding} submit for his deposition so that a more complete picture of the events 2. PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT R O B I N S O N DI L A N D O A Pr of es si on al L a w C o r p o r a t i o n Lo s An ge le s, Ca li fo rn ia NO C0 N y U T o x W N e e N O N N O N N N N N N r e p d ed ed pe d ed pe d fe d fe d OW N N N G G o k W N = O 0 N N G T N em Oo surrounding the flooding may be discovered. See Declaration of Perry E. Rhoads (“Rhoads Decl.”), 12. Plaintiff has been attempting to take Martin's deposition (in part to obtain necessary facts and evidence to oppose Walters’ deposition} since September, 2017. This issue is the subject of Plaintiff’s motion to compel Martin to appear at deposition, which is set for hearing on January 4, 2018 (Reservation No. 72700294). In summary, Martin failed to appear for examination on two separate occasions, without justification, and failed to cooperate with Plaintiff's attempts to meet and confer to reschedule his deposition. Rhoads Decl. 13. A continuance of the summary judgment hearing to depose Martin is therefore necessary and proper. A corresponding trial continuance will also be necessary. Plaintiff requests a continuance of motion for summary judgment (including the deadlines to submit opposition and reply papers for the Hearing), until at least May, 2018, to complete the deposition of Defendant Daniel Martin. IIL. SUMMARY OF ARGUMENT IN OPPOSITION Walters, as the occupant in possession and control of the hotel room, owed a legal duty of care to the landlord, the Keating Hotel (and to Plaintiff through subrogation principles) to prevent property damage to the hotel by her want of ordinary care in the management of the property in her possession and control. A failure to satisfy this duty is negligence. Walters breached her duty and obligation by permitting her guest to use the shower in such a matter that the shower overflowed and flooded the hotel room and surrounding areas. While Waters’ guest may have been the one who turned on the shower and blocked the drain, this does not insulate Walters from liability. She owed a duty to prevent this dangerous condition from occurring, regardless of whether she directly created the condition or not. Even if Walters did not directly create the flood, she agreed to be responsible for the room and any damages caused by her occupancy. She also granted access to Martin, her guest. She permitted Martin to have control and access to her hotel room, despite having ample reason to believe that -3- PLAINTIFF'S OPPOSITION TC MOTION FOR SUMMARY JUDGMENT R O B I N S O N DI L A N D O A Pr of es si on al La w Co rp or at io n Lo s An ge le s, Ca li fo rn ia N O X N Y U T ks W N em P O N O N m e e d e d e s pe d e d ee d pe d pe d N = O W N N U T R W N = O 24 2b 26 27 28 Martin was incompetent to manage it. She encouraged, invited and allowed him to become intoxicated, with full awareness that he had a propensity for passing out in the shower in the evening and remaining there for many hours until he was shaken awake. Her failure to stop Martin under these circumstances resulted in the foreseeable consequence of his passing out while taking a shower, Mocking the drain, and allowing water to run out of the enclosure and damaging the Hotel room and surrounding areas. Iv. - STATEMENT OF RELEVANT FACTS As stated in herein and in the Declaration of Perry Rhoads, facts essential to justify Plaintiff's opposition cannot be presented until Defendant Martin appears for his deposition. A continuance is therefore necessary. Plaintiff presents the following partial relevant facts known to date. A. Walters Agreed To Accept Liability for Damages to the Hotel Caused by the Conduct of Her and and/or Her Guests/Occupants. On April 6, 2014, Walters invited Martin to spend the night with her at the Hotel. She invited him for the weekend to celebrate his birthday. Walters arrived first. When she arrived, Walters signed an agreement (“Party Policy Agreement”) granting Martin access to her guest room (Plaintiff's Separate Statement in Opposition (“SS”) #18; Party Policy Agreement attached to Deposition Exhibit 1). B Walters Was Aware of Martin's Alcohol Consumption. Walters was aware that Martin drank alcohol in high school, and that he was unable to participate in the graduation ceremony because he was caught with alcohol in his car at school. Walters was aware that Martin would drink alcohol on a daily basis. Walters was aware that Martin would drink at least a beer or two a day (SS#16). 1 nn 1H " ~-4- PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT R O B I N S O N DI L A N D O A Pr of es si on al La w Co rp or at io n Lo s An ge le s, Ca li fo rn ia NO 0 N T O Y G T d R W N e e N O N O N RN O N N O R N N N m e e l e d p d pe d p d e d p d p a «Co N N Ga dk W N = O Ww N Y U s W N m o C. Walters Was Aware That Martin Was Irresponsible. Walters did not consider Martin a responsible person. Walters knew Daniel to be a forgetful person. On a weekly basis, he would cancel last minute on plans he made with her, saying that he “lost track of time” (SS#19). D. Walters Was Aware that Martin Had a Habit of Passing Out in the Shower With the Water Running. Walters was aware that Martin would frequently fall asleep in the shower with the water running. The times that she personally observed this behavior from him, she would have to shake him awake and tell him to come to bed. This activity would occur in the evenings at approximately 11 p.m. It occurred approximately 10 times during the course of their relationship that lasted about a year, at his house and at her house (SS#16). In discovery responses, Martin stated that Walters encouraged the excess drinking as a birthday celebration; they were both intoxicated that night; and he drank to the point of blacking out. (SS#16). ¥. SUMMARY JUDGMENT STANDARDS When a defendant moves for summary judgment, “its declarations and evidence must either establish a complete defense to plaintiff's action or demonstrate the absence of an essential element of plaintiff's case. If plaintiff does not counter with opposing declarations showing there are triable issues of fact with respect to that defense or an essential element of its case, the summary judgment must be granted.” Gray v. America West Airlines, Inc. (1989) 209 Cal. App.3d 76, 81; Saldana v. Globe-Weis Sys. Co. (1991) 233 Cal. App. 3d 1505, 1510-11. The requirement that there be “triable issue of material fact” means that summary judgment can be granted only where the essential facts are either conceded or beyond dispute. If there is one, single material fact in dispute, the motion must be denied. The result is that summary judgment lies only where the opponent has no case at all. 24 Hour Fitness, Inc. v. Sup. Ct. (Munshaw) (1998) 66 CA4th 1199, 1215, 78 CR2d 533, 542, fn. 12. ~ -J- PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT R O B I N S O N DI L A N D O A Pr of es si on al La w Co rp or at io n Lo s An ge le s, Ca li fo rn ia O N T k W N e s N N O N N N em e d e d ed e d e d p d pe d pe d B= WwW O N = O 0 N N U l hd W N e o 25 VI. THERE IS A DISPUTE OF MATERIAL FACTS AS TO WHETHER KELSEY WALTERS, AS OCCUPIER OF THE ROOM, NEGLIGENTLY CAUSED DAMAGE TO PLAINTIFF. A. KELSEY WALTERS, AS OCCUPANT IN POSSESSION AND CONTROL OF THE HOTEL ROOM, OWED A LEGAL DUTY OF CARE TO PLAINTIFF. The law is well settled that an owner or occupier of land is required to exercise ordinary care in the management of his property and the breach of such duty constitutes actionable negligence. (Civ.Code, § 1714, subd. (a); see generally, Sprecher v. Adamson Companies (1981) 30 Cal.3d 358; Rowland v. Christian (1968) 69 Cal.2d 108; Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 567, p. 2834.) This rule applies “unless public policy clearly requires that an exception be made.” (Lipson v. Superior Court (1982) 31 Cal.3d 362, 372, 182 Cal.Rptr. 629, 644 P.2d 822.) Davert v. Larson (1985) 163 Cal. App. 3d 407, 410. Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property... Cal. Civ. Code § 1714. There are two factors generic in a landowner's or occupier's tort liability: knowledge and either possession or control of property or a condition that is dangerous. Preston v. Goldman (1986) 42 Cal. 3d 108, 119; Martinez v. Bank of America Nat. n rust & Sav. 4ss'n (2000) 82 Cal. App. 4th 883, 891-892, 894; Seaker v. Hotel Del Coronado (1991) 1 Cal. App. 4th 481, 487, 489, 492; Steinmetz v. Stockton City Chamber of Commerce (1985) 169 Cal. App. 3d 1142, 1146-1147. Except where liability is vicarious, the liability of an owner or occupier of land for the injuries of another is based on the fundamental principle of his or her control over the property and the ability to prevent the harm. “No man is responsible for that which no man can control.” -6- PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT R O B I N S O N DI L A N D O A Pr of es si on al La w Co rp or at io n Lo s An ge le s, Ca li fo rn ia N O G N y U s W N er fre sh oD 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 Civ. Code, § 3526. “[Plremises liability is predicated upon the concept that possession includes the attendant right to manage and control, justifying liability when one has failed to exercise due care in property management.” Seaber v. Hotel Del Coronado (1991) 1 Cal. App. 4th 481, 489. An owner or occupier of real property has a duty of care to prevent injury by a dangerous condition on the property over which he or she has possession or control, or to warn a third person of the condition, when the owner or occupier knows or reasonably should know of the condition and has sufficient control over the property or the condition to be able to prevent the injury or to know that the third party may encounter the condition. Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal. 4th 249, 267; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal. 4th 666, 676; Frances T. v. Village Green Owners Assn. (1986) 42 Cal. 3d 490, 499-501; Martinez v. Bank of America Nat. Trust & Sav. Ass'n (2000) 82 Cal, App. 4th 883, 891-892; Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal. App. 4th 1294, 1297-1298; Grahn v. Tosco Corp. (1997) 58 Cal. App. 4th 1373, 1400-1401. Walters was the occupant with possession and control of the hotel room where the flood emanated. She agreed to accept liability for the conduct and damages to the hotel caused by her and/or her guests/occupants. (SS#18). B. KELSEY WALTERS BREACHED HER DUTY OF CARE TO PLAINTIFF BY PERMITTING THE SHOWER TO RUN WHILE THE DRAIN WAS BLOCKED, AN OBVIOUSLY DANGEROUS CONDITION LIKELY TO CAUSE DAMAGE TO THE PROPERTY. Walters failed to exercise ordinary care in the management of the property she was in possession, occupation and control of. Her breach of care is reflected in the excessive flooding that occurred while she was present. In addition, it was an obviously dangerous condition that was reasonably foreseeable to have occurred, given Walters: (A) knew that Martin had a propensity for drinking alcohol; (B) knew that Martin was irresponsible; and (C) knew that Martin had a habit of passing out in the with the water running in the evenings. (SS# 16). 7. PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT R O B I N S O N DI L A N D O A Pr of es si on al La w Co rp or at io n Lo s An ge le s, Ca li fo rn ia a N N O N G x W N od p d M N O OO VIL KELSEY WALTERS BREACHED A CONTRACTUAL DUTY BY CAUSING DAMAGE TO THE HOTEL. “Subrogation is the right of an insurer to fake the place of its insured to pursue recovery from legally responsible third parties for losses paid to the insured by the insurer.” Kardly v. State Farm Mut. Auto. Ins. Co. (1989) 207 CA3d 479, 488 (emphasis added); Employers Mut. Liab. Ins. Co. v. Tutor-Saliba Corp. (1998) 17 C4th 632, 639. Plaintiff paid for losses sustained in the flooding (Complaint 116-17), and has a right to pursue defendants based on its subrogation rights. This includes a right to pursue defendants for breach of contract. Walters and/or her guest caused property damage to her rented room on the night of the incident. Plaintiff contends that the breach of contract claim was always subsumed in the cause of action for subrogation, even if it was not specifically asserted as a separate cause of action in the complaint. (See Complaint 16, 13-19). This cause of action arises from defendants’ agreement to be personally liable for damages caused by her hotel room occupancy. (SS#18). On November 21, 2017, Plaintiff sought to amend the complaint to include a cause of action for breach of contract against Walters and Martin, to make this clear. The motion must fail based on the breach of contract claim, which was not addressed in the moving papers. ROBINSON DILANDO / N By: Iy IN Ni 7 Michael C.Robinsar/ Orion S. nson Perry E. Rhoads Attorneys for Plaintiff, PHILADELPHIA INDEMNITY INSURANCE COMPANY DATED: November 21, 2017 em er sm n 8 PLAINTIFF’ S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT R O B I N S O N DI L A N D O A Pr of es si on al La w Co rp or at io n Lo s An ge le s, Ca li fo rn ia O N s y o x W N em N O N RN N R N N N R N e e ee d pe d ed e d ee ed e d CW N N U 1 o k W N =m O N Y U T k w N O PROOF OF SERVICE STATE OF CALIFORNIA } } SS. COUNTY OF LOS ANGELES } I am employed in the County of Los Angeles, State of California. Iam over the age of 18 and am not a party to the within action; my business address is 800 Wilshire Boulevard, Suite 750, Los Angeles, California 90017-2687. On November 21, 2017, I served the foregoing document described as PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT on the parties of record in this action by placing a true copy thereof enclosed in sealed envelopes addressed as follows: VIA FACSIMILE & U.S. MAIL VIA U.S. MAIL Thomas M. Phillips, Esq. Mr. Daniel Martin Matthew E. Voss, Esq. 4 Weber Lane Michael A. Kramer, Esq. Trabuco Canyon, CA 92679 THE PHILLIPS FIRM 800 Wilshire Boulevard, Suite 1550 VIA U.S. MAIL Los Angeles, CA 90017 Mr. Daniel Martin Facsimile: 213/244-9915 38 Via Darcaza Trabuco Canyon, CA 92679 Attorneys for Defendant and Cross-Complainant Kelsey Walters Defendant and Cross-Defendant In Pro Per [XI BY MAIL: I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [X1 BY FACSIMILE : I caused the above-referenced document(s) to be transmitted to the above-named person(s) at the following facsimile number: 213/244-9915 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on November 21, 2017 at Los Angeles, Califorr ia. i ” / MARIPN RANDON / / 9. PLAINTIFF'S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT