Elsaey v. Premier Chrysler Dodge Jeep Ram of Buena Park

by the primary assumption of the risk doctrine, the Privette Doctrine, and the lack of foreseeability of a violent attack.

This motion initially came on for hearing on July 31, 2026. It was continued to August 20, 2026, for Plaintiffs to re-file the Index of Exhibits with highlighting which allows the highlighted portions to be deposition transcripts to be visible by August 3, 2206. (ROA 181.) On July 31, 2026, Plaintiffs re-filed their Index of Exhibits in three (3) volumes in accordance with the Court’s order. (ROA 184, 186, 188.)

Premier contends that Plaintiffs’ claims for premises liability, negligence, and loss of consortium are barred based on the primary assumption of the risk doctrine and Privette Doctrine.

Plaintiffs contend that Premier’s motion must be treated only as a motion for summary judgment as it failed to comply with California Rules of Court, rule 3.1350. Plaintiffs also contend that the primary assumption of the risk doctrine does not apply, and that even if it applies, it does not bar Plaintiffs’ claims because Premier unreasonably increased the risks beyond those inherent in Plaintiff, Amir Elsaey’s duties. Plaintiffs also contend that the Privette doctrine does not bar Plaintiffs’ claims because the retained control exception applies, the negligently furnishing of unsafe equipment exception applies, and the concealed hazard exception applies.

Service of Opposition The reply contends that Plaintiffs did not properly serve their opposition on July 17, 2026, as Plaintiffs filed and served their opposition to Defendant on July 17, 2026 by e- service.

Code of Civil Procedure section 1005 states, in part: “all papers opposing a motion and all reply papers shall be served by personal delivery, facsimile transmission, express mail, or other means consistent with Sections 1010, 1011, 1012, and 1013, . . . .” (Code Civ. Proc. § 1005(c).) Section 1011 states, in part: “If service is made by electronic service, it shall be made pursuant to Section 1010.6 and applicable rules on electric [sic] service in the California Rules of Court.” (Code Civ. Proc. § 1011(c).) Section 1013 states, in part: “Electronic service shall be permitted pursuant to Section 1010.6 and the rules on electronic service in the California Rules of Court.” (Code Civ. Proc. § 1013(g).) Therefore, electronic service of the opposition is proper.

Notice of Summary Adjudication Plaintiffs argue that although Premier’s notice of motion states that it is in the alternative for summary adjudication, Premier fails to specify in its notice of motion and motion the claim, cause of action, or issues it is moving on, as required by California Rules of Court, rule 3.1350, such that the court must treat the motion solely as a motion for summary judgment.

If summary adjudication is sought, “the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (California Rules of Court, rule 3.1350(b).) In order to move for summary adjudication, the party moving must specify in its notice of motion and motion the claim, causes of action, or issues it is moving on. (California Rules of Court, rule 3.1350 (b).)

A notice of motion must state the “grounds upon which it will be made.” (Homestead Savings v. Superior Court (1986) 179 Cal. App. 3d 494, 498 [citing Code Civ. Proc. § 1010] (“Homestead”).) The court has no power to adjudicate others. (Maryland Cas. Co. v. Reeder (1990) 221 Cal. App. 3d 961, 974 n. 4; Homestead, supra, 179 Cal. App. 3d at p. 498.) A party does not waive any requirement of notice for a subissue that was not set forth in the notice by responding to the argument. (Homestead, supra, 179 Cal.

App. 3d at p. 498.)

Here, the notice of motion provides that Plaintiffs’ action is barred due to “the Primary Assumption of Risk doctrine, the Privette Doctrine and the lack of foreseeability of a violent attack,” and that Plaintiffs are precluded “from recovering damages from Premier under premises liability theories of liability, negligence and loss of consortium. (Notice of Motion, 2:13-21.) Because the specific cause of action and/or affirmative defense for summary adjudication are not stated specifically in the notice of motion, the Court treats the instant motion as a motion for summary judgment only.

In any event, the five issues for summary adjudication set forth in Premier’s Separate Statement of Undisputed Material Facts rely on the same set of 22 asserted material facts.

Merits Initially, the operative First Amended Complaint (“FAC”) asserts three causes of action for negligence, premises liability, and loss of consortium. The first and second causes of action for negligence and premises liability are brought by Plaintiff, Amir Elsaey against Premier, and the third cause of action for loss of consortium is brought by Plaintiff, Magdalena Elsaey against Premier. (See ROA 12, FAC.) It is alleged that the incident arises out of a violent assault on Plaintiff, Amir Elsaey that occurred on or about July 30, 2022 (the “Subject Incident”), at or near a car dealership located at 6011 Botryoides Ave., Buena Park, CA (the “Subject Premises”); that prior to and on July 30, 2022, individuals, including DOE 1, vandalized the Subject Premises; that prior to Plaintiff being assaulted on July 30, 2022, DOE 1 was observed entering the Subject Premises through a torn hole in the security fence; that the subject damaged security fence was reported to Defendants on several prior occasions where vandals had gained entrance to the Subject Premises by entered the damaged security fence; that several vandalizers and persons who were not lawfully permitted on the Subject Premises entered the Subject Premises through the hole in the security fence on prior occasions; that these unlawful entries on the Subject Premises were reported to the Defendants on prior occasions before the Subject Incident; and that despite this known hazard, Defendants took no action to remedy, replace, or repair the security fence or to prevent unlawful and unauthorized access to activities on the Subject Premises. (FAC, ¶¶ 10, 12-19.)

Plaintiffs allege that DOE 1 was observed on the Subject Premises, vandalizing vehicles located on the Subject Premises, by the Defendants, and their agents, servants, and/or employees; that persons unlawfully on the Subject Premises were permitted to enter the Subject Premises through the hole in the security fence; and that it was known or should have been known by the Defendants of the risk posed by persons unlawfully entering the Subject Premises. (FAC, ¶¶ 20-22.) Plaintiffs allege that at “approximately 4:30 a.m. on July 30, 2022, Plaintiff AMIR ELSAEY was working as a security guard on the SUBJECT PREMISES, in the course and scope of his employment with NCS Security.

Plaintiff observed DOE 1 attempting to steal a vehicle from the car lot at the SUBJECT PREMISES. Plaintiff AMIR ELSAEY approached DOE 1, who then violently assaulted him and then fled from the SUBJECT PREMISES.” (FAC, ¶ 23.)

The first cause of action for negligence incorporates the above allegations and alleges that Defendants breached a duty of reasonable care as on or about July 30, 2022, each of the defendants, “failed to reasonably own, construct, manage, maintain, repair, replace, supervise, control, and operate the SUBJECT PREMISES by, among other things, knowingly allowing a hole to remain in the security fence that provided access to persons who were not lawfully on the SUBJECT PREMISES and who intended to cause damage and harm to persons and property.” (FAC, ¶¶ 26, 31.)

It is alleged that the damaged security fence “posed an unreasonable risk of harm to others even when used in a reasonably foreseeable manner, and posed a particular risk to Plaintiff AMIR ELSAEY, who was responsible for providing overnight security at the SUBJECT PREMISES as an employee of NCS Security.” (FAC, ¶ 32.) It is also alleged that Defendants “performed acts that affirmatively contributed to the creation of the unsafe conditions or otherwise failed to remediate such conditions despite having actual and constructive knowledge of the damaged security fence and prior unlawful access and activities on the SUBJECT PREMISES.” (FAC, ¶ 33.)

It is additionally alleged that Defendants negligently failed to remedy the known hazardous conditions and allowed the Subject Incident to occur. (FAC, ¶ 36.)

The second cause of action for premises liability incorporates the above allegations and alleges that Mr. Elsaey was an employee of an independent security company and invitee of Defendants, and that while Mr. Elsaey was on the Subject Premises on or about July 30, 2022, providing security services to Defendants, Defendants, and each of them, “so negligently and carelessly owned, operated, supervised, cared for, inspected, handled, and maintained the SUBJECT PREMISES and the security fence so as to cause the SUBJECT INCIDENT which resulted in Plaintiff AMIR ELSAEY being seriously injured.” (FAC, ¶¶ 44-47.)

It is alleged that “[t]he lack of adequate security fences created an unreasonable risk of harm to those using the SUBJECT PREMISES in a reasonably foreseeable manner, including, specifically, Plaintiff AMIR ELSAEY,” and that Defendants created, maintained, controlled and allowed a dangerous condition of the Subject Premises to exist in the area where Plaintiff was assaulted. (FAC, ¶¶ 49-50.)

The third cause of action for loss of consortium incorporations the above allegations, and alleges that Plaintiff Magdalena Elsaey was and is the lawful wife of Plaintiff Amir Elsaey, and that while Mr. Elsaey was able to and did perform his duties as a spouse prior to the Subject Incident, he has been unable to perform said duties subsequent to his injuries from the Subject Incident. (FAC, ¶¶ 55-57.)

Premier’s Answer to the FAC asserts its fourth affirmative defense as assumption of the risk, and its sixteenth affirmative defense as the Privette Doctrine.

Premier’s Evidentiary Objections “In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, . . . .” (Code Civ. Proc. § 437c(c).)

“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to the disposition of the motion.” (Code Civ. Proc. § 437c(q).)

The Court SUSTAINS Objection Nos. 1, 2, 3, 10, 11, 12, and 13.

The Court OVERRULES Objection Nos. 4, 5, and 6.

The Court declines to rule on Objection Nos. 7, 8, and 9 as the evidence at issue is not material to the disposition of the motion.

“ ‘A properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that expert’s opinion will assist the trier of fact. (Evid.Code, § 801, subd. (a).) Even so, the expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact.’ (Ibid.)” (Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 742–743.)]

Primary Assumption of the Risk Premier contends that Plaintiff Amir Elsaey’s injuries were caused by an inherent occupational risk, and that Premier did not do anything that could be considered to have unreasonably increased the inherent risk, such that Plaintiff Amir Elsaey’s claims for negligence and premises liability are barred.

Plaintiff contends that the primary assumption of the risk doctrine does not apply under the facts of this case, and that the Firefighter’s Rule is inapplicable. Plaintiff also contends that even if the primary assumption of the risk doctrine applies, Premier unreasonably increased the risks beyond those inherent in Plaintiff, Amir Elsaey’s duties, that Plaintiff did not assume the risk of being violently attacked by a trespasser, and that the attack was foreseeable to Premier. Initially, the primary assumption of the risk doctrine has been applied to the employment of a security guard in Tilley v.

C.Z. Master Assn. (2005) 131 Cal.App.4th 464 (“Tilley”). The Court of Appeal rejected an argument that the primary assumption of risk doctrine cannot be applied against a private safety officer, and found summary judgment would have been appropriate, noting that the homeowners association was “itself the entity which is alleged to have engaged Tilley to confront potentially violent young party goers in Coto—an extension of the more passive ‘observe and report’ function normally required of BonaFide security guards.” (Id. at p. 490.) “Assuming that allegation were proven, it would establish that CZ [homeowners association] hired Tilley to confront the very hazard which resulted in his injury, and would thus exonerate CZ from any duty to protect him from that hazard.” (Ibid.)

Here, the FAC alleges that Premier failed to reasonably own, construct, manage, maintain, repair, replace, supervise, control, and operate the Subject Premises, by, among other things, knowingly allowing a hole to remain in the security fence, creating an unreasonable risk of harm and/or dangerous condition, resulting in the harm to Mr. Elsaey. (FAC, ¶¶ 19, 21, 22, 31-33, 36, 41, 47-50, 52.) Therefore, it appears that the primary assumption of the risk doctrine may be applicable here.

“The question whether the primary assumption of risk doctrine applies, and therefore whether a duty of care exists, is a legal question to be decided by the court. [Citation.]” (Whelihan v. Espinoza (2003) 110 Cal. App. 4th 1566, 1572.) “The doctrine ‘embodies a legal conclusion that there is “no duty” on the part of the defendant to protect the plaintiff from a particular risk.’ [Citation.]” (Ibid.)

In the seminal case concerning the doctrine of primary assumption of risk, Knight v. Jewett (1992) 3 Cal.4th 296, the California Supreme Court found that the question of whether the defendant owed a legal duty to protect the plaintiff from a particular risk of harm does not turn on the reasonableness or unreasonableness of the plaintiff’s conduct, but rather on the nature of the activity or sport in which the defendant is engaged and the relationship of the defendant and the plaintiff to that activity or sport.” (Knight v.

Jewett (1992) 3 Cal.4th 296, 309.) “In cases involving ‘primary assumption of risk’ –where, by virtue of the nature of the activity and the parties’ relationship to the activity, the defendant owes no legal duty to protect the plaintiff from the particular risk of harm that caused the injury—the doctrine continues to operate as a complete bar to the plaintiff’s recovery.” (Id. at p. 314.)

There are two species of assumption of risk: primary and secondary. (Avila v. Citrus Cmty. Coll. Dist. (2006) 38 Cal. 4th 148, 161.) “Primary assumption of the risk arises when, as a matter of law and policy, a defendant owes no duty to protect a plaintiff from particular harms. [Citation.]” (Ibid.) “Under this duty approach, a court need not ask what risks a particular plaintiff subjectively knew of and chose to encounter, but instead must evaluate the fundamental nature of the sport and the defendant’s role in or relationship to that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm. [Citation.]” (Ibid.)

Primary assumption of the risk operates as a complete bar because of a legal determination that the defendant did not owe any duty to protect the plaintiff from the particular risk of harm involved in the claim. (Peart v. Ferro (2004) 119 Cal. App. 4th 60, 71.) “ ‘ “The overriding consideration in the application of primary assumption of the risk is to avoid imposing a duty which might chill vigorous participation in the implicated activity and thereby alter its fundamental nature.” [Citation.] . . . .’ “ (Id. at pp. 71-72.) “[T]he primary assumption of the risk doctrine, as applied in the employment context, provides that one who hires a person to confront a particular risk, owes no duty to protect the person against that risk.” (Tilley, supra, 131 Cal.App.4th at p. 489.) “As explained in [Neighbarger v.

Irwin Industries, Inc. (1994) 8 Cal.4th 532], ‘it is unfair to charge the defendant with a duty of care to prevent injury to the plaintiff arising from the very condition or hazard the defendant has contracted with the plaintiff to remedy or confront.’ [Citation.]” (Ibid.) “The primary assumption of the risk doctrine rests on a straightforward policy foundation: the need to avoid chilling vigorous participation in or sponsorship of recreational activities by imposing a tort duty to eliminate or reduce the risks of harm inherent in those activities.” (Nalwa v.

Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1156.) The Court must determine whether Premier did anything to increase the risks inherent in providing overnight security services. (See Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 232 [finding that although the primary assumption of risk applied to an organized motorcycle ride on public highways, the Court of Appeal “still must determine whether Harley-Davidson did anything to increase the risks inherent in that activity”]; Luna v.

Vela (2008) 169 Cal.App.4th 102, 111 [finding that although tripping over a net pole tie line is an inherent risk of volleyball, the defendant had a duty not to increase that particular risk of harm beyond what is inherent in the sport itself and it was for the trier of fact to determine whether defendant breached his limited duty not to increase the risks inherent in the sport of volleyball].) “This is because, although defendants do not have a duty to protect the plaintiff from risks inherent in the activity, they do not have a duty not to increase the risk of harm beyond what is inherent in the activity. [Citation.]” (Amezcua v.

Los Angeles Harley- Davidson, Inc. (2011) 200 Cal.App.4th 217, 232.)

Primary assumption of the risk governs claims arising from inherent occupational hazards. (Gregory v. Cott (2014) 59 Cal.4th 996, 1001.) “Courts have held that when the plaintiff claims the defendant’s conduct increased the inherent risks of a sport, summary judgment on primary assumption of the risk grounds is unavailable unless defendant disproves the theory or establishes a lack of causation. [Citations.]” (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 740.) It is for the court to decide the inherent risks of an activity, and whether the defendant has increased the risks of the activity beyond the risks inherent in the activity. (American Golf Corp. v. Superior Court (2000) 79 Cal.App.4th 30, 37.) An expert opinion may inform the court on these questions. (Ibid.)

“ ‘ “Judges deciding inherent risk questions . . . may consider not only their own or common experience with the . . . activity involved but may also consult case law, other published materials, and documentary evidence introduced by the parties on a motion for summary judgment.” ’ [Citations.]” (Moore v. William Jessup University (2015) 243 Cal.App.4th 427, 435.) “The inquiry whether the primary assumption of the risk applies and whether the defendant owes the plaintiff a duty to not increase the risks inherent in an activity is based on objective factors having to do with the nature of the subject activity and the relationship of the plaintiff and the defendant to that activity. [Citations.]” (Ibid.) “The plaintiff’s subjective appreciation or acceptance of the foreseeable occupational hazard involved is immaterial. [Citation.]” (Ibid.)

Here, initially, Premier fails to establish that the property alleged in the FAC, 6011 Botryoides Ave., Buena Park, CA, was part of the premises for which Mr. Elsaey’s employer was contracted to provide security services. The Security Guard Agreement states that the “Protected Premises” for Premier is located at 7301 Artesia Blvd., Buena Park, CA 90621, and “additional 2 other locations.” (Ex. 1 to Declaration of Nicole M. Ortiz/Premier’s Appendix of Exhibits, Security Guard Agreement Updated, ¶ 1.)

In this regard, Premier fails to establish that Mr. Elsaey was employed to provide security services for the Subject Premises alleged in the FAC, and in turn, that he was hired to confront a particular risk, i.e., risks of providing security services on the Subject Premises. Nevertheless, Plaintiffs’ additional material facts include that Mike Bailey, the owner of NCS/SPS testified that the scope of work for SPS/NCS was for the dealership office and the dirt lot where Plaintiff was attacked. (Plaintiffs’ Additional Material Facts, No. 54; Ex. 3 to Plaintiffs’ Index of Evidence, Deposition of Michael Bailey, 31:1-19.)

It is undisputed that Mr. Elsaey was employed and paid as security guard for SPS, as of July 30, 2022. (Plaintiff’s Response Separate Statement (“PSS”), Nos. 2, 5.) It is also undisputed that Mr. Elsaey’s duties were to observe, report, and investigate at the premises. (PSS, No. 12.) While Mr. Elsaey states that he has never seen the Security Guard Service Agreement and has no understanding of what is or is not contained within that document, it is undisputed that the Security Guard Service Agreement defines the “scope of work” as follows: “NCS Security shall provide standard and conventional security guard services to client’s premises as indicated in Service Agreement.

This includes and not limited to perimeter guard tour of property, access control of property based upon client’s direction, parking control of client’s property based upon client’s direction and the response to client’s security needs at subject property. Included in scope of work are: “1. Monitoring, observation, documentation, and reporting of client premises during hours contracted by client. “2. Additional security service needs within the realm of “private security guard” work and within limitations set forth by laws governing Private Patrol Operators within the State of California.” (Ex. 1 to Declaration of Nicole M.

Ortiz (“Ortiz Decl.”)/Premier’s Appendix of Exhibits (“Premier’s AOE”), Security Guard Agreement Updated, Attachment “A”; Declaration of Amir Elsaey, ¶ 2.)

Premier asserts as a material fact that SPS dictated the guard’s policies and procedures that Mr. Elsaey was required to follow in performing security guard services at Premier’s premises, however, this fact is disputed. Plaintiffs assert that Premier dictated the policies and procedures that Mr. Elsaey was required to follow in performing security guard services at Premier’s services. (PSS, No. 8; Declaration of Frank Alvarez, ¶ 5; Ex. 1 to Ortiz Decl./Premier’s AOE, Security Guard Agreement Updated; Ex. 2 to Ortiz Decl./Premier’s AOE, Deposition of Mike Bailey (“Bailey Depo.”), 81:6-11, 83:11-18; Ex. 3 Ortiz Decl./Premier’s AOE, Deposition of Amir Elsaey, Vol. 1, 49:25-52:7; Ex. 5 to Ortiz Decl./Premier’s AOE, Employment Contract; Ex. 6 to Ortiz Decl./Premier’s AOE, Security Officer Job Description; Ex. 1 to Plaintiffs’ Index of Exhibits (“IOE”), Deposition of Amir Elsaey, Vol.

I, 79:16-82:8, 93:17-20; Ex. 2 to Plaintiffs’ IOE, Deposition of Frank Alvarez, 49:16-21, 50:5-6; Ex. 3 to Plaintiffs’ IOE, Deposition of Michael Bailey, 39:16-41:18; 90:17-24; 132:20-133:14; 134:9-136:22; 137:4-139:19; Ex. 10 to Plaintiffs’ IOE, Deposition of Amir Elsaey, Vol. II, 153:24-154-14; 166:1-9; 296:3-11, 18-22; 298:3-299:10.) A moving party should “[i]nclude only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included.

Thus, if a triable issue is raised as to any of the facts in [the] separate statement, the motion may be denied.” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.)

Further, and importantly, Plaintiffs’ additional material facts support that Premier increased the risks inherent in providing security services by failing to maintain the security fence in the dirt lot where Mr. Elsaey was attacked. Premier does not dispute any of the additional material facts asserted by Plaintiffs. Plaintiffs’ undisputed material facts establish that trespassers were entering the dirt lot where Mr. Elsaey was attacked through a perimeter fence and that Premier was aware that the perimeter fence was being breached by trespassers on a recurring basis as in the approximately 18 months prior to the attack, Plaintiff submitted to NCS/SPS, whose owner Michael Bailey (Bailey) relayed to Frank Alvarez (Premier’s General Manager), Augustin Galeana (Premier’s Sales Manager) and Marco Fernadez, (Premier’s Service Manager) via email, detailed reports documenting chronic fence cuts, as well as reported the problems with the cuts in the fence many times verbally to Augi Galeana. (Plaintiffs’ Additional Material Facts (“AMF”), Nos. 26-30, Declaration of Mohamed El Biali aka Mike Bailey, ¶ 4; Ex. 2 to Plaintiffs’ IOE, Deposition of Frank Alvarez, 50:24-51:6; Ex. 3 to Plaintiffs’ IOE, Deposition of Michael Bailey, 28:15-21; Ex. 4 to Plaintiffs’ IOE, Deposition of Augustin Galeana, 15:17-16:8, 17:4-12, 20:12-19, 24:14-25:3; Ex. 5 to Plaintiffs’ IOE, Deposition of Marco Fernandez, 15:20-16:3; Ex. 8 to Plaintiffs’ IOE; Ex. 10 to Plaintiffs’ IOE, Deposition of Amir Elsay, Vol II, 169:18-20; 174:10-14; 174:24-175:6; 303:1- 21.)

Plaintiffs’ additional facts also establish that Premier’s General Manager, Frank Alvarez, knew that the fence cuts created “access for criminals” and personally observed fence holes, and that Marcos Fernandez gave Moe Jubran instructions to repair the hole in the fence, and the repair included using pliers to bend the wires back to together and to use zip ties to zip up the holes. (Plaintiffs’ AMF, No. 32; Ex. 2 to Plaintiffs’ IOE, Deposition of Frank Alvarez, 81:19- 82:21; 85:13-18; 86:1-4; 89:4-11; Ex. 6 to Plaintiffs’ IOE, Deposition of Moe Jubran, 40:12-23; 41:18-42:5.)

It is additionally undisputed that sometime prior to July 30, 2022, there was a hole “bit enough to fit a 6-foot body” and that it was repairable with closing the hole with zip ties. (Plaintiffs’ AMF, No. 52, Ex. 6 to Plaintiffs’ IOE, Deposition of Moe Jubran, 40:12-23; 41:8-42:5.) It is additionally undisputed that the repairs were “recut” multiple times after his repairs. (Plaintiffs’ AMF, Nos. 51, Ex. 6 to Plaintiffs’ IOE, Deposition of Moe Jubran, 41:18-42:5.)

Plaintiffs’ additional facts also establish that Manager Marcos Fernandez testified that no one person was ever specifically tasked with inspecting the fences, that there were no job descriptions with regards to inspecting fences, and that the holes in the fences created a situation where trespassers could more easily access the dirt lot. (Plaintiffs’ AMF No. 33, Ex. 5 to Plaintiffs’ IOE, Deposition of Marco Fernandez, 42:23-43:8; 46:2-4; 46:18-47:7.)

Plaintiffs’ evidence further establishes that Mr. Elsaey had conversations with the manager at Premier about the broken fence, and that he always promised that it would be fixed but he never did. (Ex. 1 to Plaintiffs’ IOE, Deposition of Amir Elsaey, Vol. I, 90:2:9.)

Based on the foregoing, even if the primary assumption of risk applies, there is a triable issue of fact as to whether Premier increased the risks inherent in providing overnight security services where, prior to the attack on Mr. Elsaey, Premier was aware of holes being cut into the fence on the dirt lot, but failed to properly repair the fence, and knew that this allowed trespassers to enter the lot.

While it is undisputed that Mr. Elsaey understood that the work context involved conflictual contact, aggressive people, pleasant, or angry people (PSS, No. 12), Premier’s failure to properly repair the holes in the fence despite its knowledge of the holes and multiple failed attempts to fix them with a ziptie method increased the risk of encountering potential criminal activity and/or dangerous situations.

To the extent that Premier relies on Tilley, it is distinguishable as the allegation for increased risk of harm to security personnel was an instruction to respond to reports of disturbances without providing any further instruction or guidance. (Tilley, supra, 131 Cal.App.4th at p. 472.) In contrast, the asserted conduct by Premier was failing to properly maintain and repair a fence that allowed trespassers into the lot which made the performance of Mr. Elsaey’s duties more dangerous.

Premier also cites to Beninati v. Black Rock (2009) 175 Cal.App.4th 650 (“Beninati”), and Moore v. William Jessup University (2015) 243 Cal.App.4th 427 (“Moore”), with regards to the issue of increasing the inherent risk of harm.

In Beninati, an attendee at the Burning Man festival and fell in a bonfire and burned his hands, and the plaintiff attendee sued either the lessee or possessor of the land upon which the festival was held for negligence, asserting that defendant negligently allowed attendees to approach the burning remnants of the Burning Man sculpture without provision for safe ingress and egress. (Beninati, supra, 175 Cal.App.4th at p. 653.) The Court concluded that the plaintiff had “deliberately, and with awareness of specific risks inherent in the activity, nonetheless chose to engage in an activity similar to that engaged in by a firefighter as part of the firefighter's professional duties,” and that “[t]he risk of injury to those who voluntarily decide to partake in the commemorative ritual at Burning Man is self-evident.” (Id. at p. 658.)

The Court also concluded that plaintiff’s argument that defendant increased the risk of harm failed for lack of factual support for plaintiff’s contentions of lack of supervision of the festival site and the use of wire cables to stabilize the Burning Man sculpture. (Id. at p. 660.) In contrast, here, Plaintiffs present evidence of the existence of holes in the fence, knowledge by Premier of said holes in the fence, and failed attempts to repair said holes in the fence while knowing that allowing the holes in the fence to persist would allow trespassers to enter the lot.

In Moore, the Court found that risk of injury for lifting heavy boxes that may be labeled with inaccurate weight information was inherent in the plaintiff’s job as a UPS delivery driver, such that the shipper of the package did not owe a duty to protect plaintiff from that risk, and that the shipper did not increase the risk of harm. (Moore, supra, 243 Cal.App.4th at pp. 437-440.) The Court found that UPS delivery drivers had a reason not to rely on customer weight representations in determining how to move or lift package, and that UPS trained its employees to test the weight of the package before lifting it. (Id. at p. 439.) Conversely, here, the risks inherent Mr. Elsaey’s provision of security services increased by allowing the repeated condition of fence with holes to persist.

The motion for summary judgment based on the application of the primary assumption of the risk doctrine is DENIED.

To the extent that Premier argues that that Premier never installed a security screen on the fence as required by its lease with the City of Buena Park, or that Premier promised to provide adequate lighting for the safety of the security guards patrolling the lot at night and failed to do so, these are not alleged in the FAC. “[S]ummary judgment cannot be denied on a ground not raised by the pleadings. [Citations.]” (Bostrom v. County of San Bernardino (1995) 35 Cal.App.4th 1654, 1663.)

Privette Doctrine Premier contends that the Privette Doctrine applies to bar Plaintiffs’ negligence and premises liability causes of action, and that no exception applies here.

Plaintiffs contend that exceptions to the Privette Doctrine apply, including the retained control exception, the negligently furnishing of unsafe equipment exception, and the concealed hazard exception.

Initially, Premier’s purported undisputed facts for the Privette doctrine is the same as that asserted for the primary assumption of the risk doctrine. As set forth above, there is a triable issue of material fact as to certain facts asserted by Premier which are equally applicable to the Privette doctrine. On this basis, the Court may deny the motion for summary judgment.

Separately, there is a triable issue of material fact as to whether an exception to the Privette doctrine applies.

“Generally, when employees of independent contractors are injured in the workplace, they cannot sue the party that hired the contractor to do the work. [Citation.]” (Seabright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, 594 (“Seabright”) citing to Privette v. Superior Court (1993) 5 Cal.4th 689.)

The Privette rule applies when the party that hired the contractor fails to comply with workplace safety requirements concerning the precise subject matter of the contract, and the injury is alleged to have occurred as a consequence of that failure. (Seabright, supra, 52 Cal.App.4th at p. 594.) “By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes to the contractor’s employees to ensure the safety of the specific workplace that is the subject of the contract. That implicit delegation includes any tort law duty the hirer owes to the contractor’s employees to comply with applicable statutory or regulatory safety requirements.” (Ibid.)

“When a person or organization hires an independent contractor, the hirer presumptively delegates to the contractor the responsibility to do the work safely. [Citations.]” (Sandoval v. Qualcomm Incorporated (2021) 12 Cal.5th 256, 269 (“Sandoval”).) “Because we typically expect contractors to perform the contracted work more safely than hirers, we have endorsed a ‘strong policy’ of presuming that a hirer delegates all control over the contracted work, and with it all concomitant tort duties, by entrusting work to a contractor. [Citation.]

In light of this presumption, we have refused to extend liability to hirers even on theories of nominally ‘direct’ liability, such as negligent failure to require precautions or negligent hiring of an incompetent contractor. [Citation.]” (Id. at p. 270.) “But that presumption gives way to two recognized exceptions: where the hirer either withholds critical information regarding a concealed hazard (Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 664, 36 Cal.Rptr.3d 495, 123 P.3d 931 (Kinsman)); or retains control over the contractor’s work and actually exercises that control in a way that affirmatively contributes to the worker’s injury (Hooker v.

Department of Transportation (2002) 27 Cal.4th 198, 202, 115 Cal.Rptr.2d 853, 38 P.2d 1081 (Hooker)).” (Id. at p. 264.)

The Privette doctrine gives way to exceptions when a hirer withholds critical safety information and fails to effectively delegate its responsibilities in practice, or a hirer delegates its responsibilities only partially by retaining control of certain activities directly related to the contracted work. (Sandoval, supra, 12 Cal.5th at p. 271.) In Kinsman, the California Supreme Court “articulated the rule that a landowner-hirer owes a duty to a contract worker if the hirer fails to disclose to the contractor a concealed premises hazard. [Citation.]” (Ibid.) In Hooker, the California Supreme Court “articulated the rule that the hirer owes a duty to contract worker if the hirer retains control over any part of the work and actually exercises that control so as to affirmatively contribute to the worker’s injury. [Citation.]” (Ibid.)

The Privette presumption affects the burden of producing evidence. (Alvarez v. Seaside Transportation Services LLC (2017) 13 Cal.App.5th 635, 643.) Privette bars plaintiff’s action absent a triable issue of fact as to whether an exception applies that would permit plaintiff to recover against defendants. [Citation.]” (Gravelin v. Satterfield (2011) 200 Cal.App.4th 1209, 1211.)

Initially, Plaintiffs do not contend that the Privette doctrine does not apply. Indeed, it is undisputed that on or about May 5, 2022, SPS signed a security guard service agreement to provide unarmed security guard services for Premier, and that on July 30, 2022, Mr. Elsaey was a licensed security and was employed and paid as a security guard for SPS, as well as had a shift from 8:00 p.m. or 9:00 p.m. to 6:00 a.m., after Premier’s business hours. (PSS, Nos. 1, 2, 5, 13.) It is also undisputed on or about July 30, 2022, Mr.

Elsaey got out of his vehicle to walk the premises and investigate an unknown noise that he heard, and was assaulted and battered by an unknown third-party criminal. (PSS, No. 14.) After this incident, Mr. Elsaey filed a workers’ compensation claim against SPS in connection with the subject incident, and has received workers’ compensation benefits as a result. (PSS, No. 15.) Based on the above, Premier hired an independent contractor, SPS, to perform security services, and Mr. Elsaey was an employee of SPS and was injured while performing such services such that the Privette doctrine would bar Plaintiffs’ claims unless an exception applies.

Retained Control Exception There is an exception when the hirer’s conduct has affirmatively contributed to the injuries of the contractor’s employee. (Hooker v. Department of Transportation (2002) 27 Cal.4th 198, 211-212.) “[M]ere retention of the ability to control safety conditions is not enough. ‘[A] general contractor owes no duty of care to an employee of a subcontractor to prevent or correct unsafe procedures or practices to which the contractor did not contribute by direction, induced reliance, or other affirmative conduct . . . .’ ” (Id. at p. 209.) “ ‘. . . .

The mere failure to exercise a power to compel the subcontractor to adopt safer procedures does not, without more, violate any duty owed to plaintiff. . . .’ ” (Ibid.) “[A]ffirmative contribution need not always be in the form of actively directing a contractor or contractor’s employee. There will be times when a hirer will be liable for its omissions. For example, if the hirer promises to undertake a particular safety measure, then the hirer’s negligent failure to do so should result in liability if such negligence leads to an employee injury.” (Id. at p. 212, fn. 3.)

Under the retained control exception in Hooker, the plaintiff “must establish not only that the hirer retained control over the contracted work, but also that the hirer actually exercised that retained control in a manner that affirmatively contributed to the contract worker’s injury. [Citation.]” (Sandoval, supra, 12 Cal.5th at p. 274.) A hirer ‘retains control’ where it retains a sufficient degree of authority over the manner of performance of the work entrusted to the contractor.” (Ibid.) Additionally, “a hirer’s authority over the contracted work amounts to retained control only if the hirer’s exercise of that authority would sufficiently limit the contractor’s freedom to perform the contracted work in the contractor’s own manner. [Citations.]” (Id. at p. 275.)

“A hirer ‘actually exercise[s]’ its retained control over the contracted work when it involves itself in the contracted work’ such that the contractor is not entirely free to do the work in the contractor’s own manner.’ [Citations.]” (Sandoval, supra, 12 Cal.5th at p. 276.) “Unlike ‘retained control,’ which is satisfied where the hirer retains merely the right to become so involved, ‘actual exercise’ requires that the hirer in fact involve itself, such as through direction, participation, or induced reliance. [Citations.]” (Ibid.)

“ ‘Affirmative contribution’ means that the hirer’s exercise of retained control contributes to the injury in a way that isn’t merely derivative of the contractor’s contribution to the injury. [Citation.]” (Sandoval, supra, 12 Cal.5th at p. 277.) “Where the contractor’s conduct is the immediate cause of injury, the affirmative contribution requirement can be satisfied only if the hirer in some respect induced – not just failed to prevent – the contractor’s injury-causing conduct. [Citations.]” (Ibid.) “It is not enough for the hirer’s exercise of control to incidentally give the hirer the opportunity to prevent the contractor’s injury-causing conduct. [Citation.]” (Ibid.) “A hirer’s conduct also satisfies the affirmative contribution requirement where the hirer’s exercise of retained control contributes to the injury independently of the contractor’s contribution (if any) to the injury. [Citations.]” (Ibid.) “Importantly, neither ‘actual exercise’ nor ‘affirmative contribution’ requires that the hirer’s negligence (if any) consist of an affirmative act. The hirer’s negligence may take the form of any act, course of conduct, or failure to take a reasonable precaution that is within the scope of its duty under Hooker. [Citations.]” (Ibid.)

“If a plaintiff provides that the hirer actually exercised retained control in a way that affirmative contributed to the contract worker’s injury, the plaintiff establishes that the hirer owed the contract worker a duty of reasonable care as to that exercise of control,” and “[t]he Privette doctrine does not bar liability. [Citation.]” (Sandoval, supra, 12 Cal.5th at p. 278.)

Here, the scope of work for SPS was for the dealership and the dirt lot where Plaintiff was attacked. (Plaintiffs’ Additional Material Facts, No. 54; Ex. 3 to Plaintiffs’ Index of Evidence, Deposition of Michael Bailey, 31:1-19.) As set forth above, Premier retained control over the dirt lot and the holes in the fence in the dirt lot by making attempts to repair them and close the holes with zip ties, which failed. It is undisputed that on the night of the incident, July 30, 2022, Mr. Elsaey saw a shape that entered from “the broken fence, the open fence” and he was stabbed and then hit over the head and knocked unconscious. (Plaintiff’s AMF, No. 24, Ex. 10 to Plaintiffs’ IOE, Deposition of Amir Elsay, Vol II, 157:8- 158:16; 169:11-17; 172:12-14.)

Based on the above, Plaintiff presents evidence that Premier retained control over the dirt lot for which Mr. Elsaey provided security services, and negligently repaired known holes in the fence in the dirt lot which affirmatively contributed to Mr. Elsaey’s attack and injuries as the attacker entered through “the broken fence.” Contrary to Premier’s assertion, did not exercise authority over the premises in a manner that affirmatively contributed to Mr. Elsaey’s injuries. Therefore, Plaintiffs create a triable issue of fact as to whether the retained control exception to the Privette doctrine applies.

Premier’s motion for summary judgment on the ground that the Plaintiffs’ claims are barred by the Privette doctrine is DENIED.

In light of the foregoing, the Court need not address Plaintiffs’ additional arguments that other, independent exceptions to the Privette doctrine, including the negligent furnishing of unsafe equipment, and concealed hazard, apply.

Plaintiffs’ to give notice.

112 Yasuda vs. Pacific Life Insurance Company, 25-01451322

Defendant Pacific Life Insurance Company (“Defendant”) moves to compel Plaintiff Gary Yasuda (“Plaintiff”) to provide further responses to Form Interrogatories and Requests for Production, and for a further document production. Defendant also seeks monetary sanctions against Plaintiff and his counsel, Stephen Shuman, Walter Lack, and Engstrom Lipscolm & Lack, LLC, jointly and severally, in the amount of $4,329.00.

Based on the representations of the parties, the motion is now MOOT as to Form Interrogatories and all Requests for Production except for Nos. 34, 71, 72, 73. Sanctions also remain at issue.

Pursuant to Code of Civil Procedure section 2031.310, subdivision (b)(1), a motion brought pursuant to this section “shall set forth specific facts showing good cause justifying the discovery sought by the demand.” (Code Civ. Proc., §2031.310, subd. (b)(1).) "Good cause” for production of documents may be established where it is shown that the request is made in good faith and that the documents sought are relevant to the subject matter and material to the issues in the litigation. (Associated Brewers Distributing Co. v. Superior Court (1967) 65 Cal.2d 583, 588.)

Once good cause is shown, the burden shifts to the objecting party, to justify his objections. (Kirkland v. Superior Court (2002) 95 Cal.App.4th 92, 98.)

Here, Defendant has shown good cause for the requested discovery because each request for production seeks documents and things supporting allegations set forth in the Complaint.

Plaintiff failed to meet his burden of justifying the objections, as Plaintiff did not address his objections at all.

Accordingly, the motion is GRANTED as to requests Nos. 34, 71, 72, 73. Plaintiff shall produce further verified responses as well as the applicable production within 20 days.

Plaintiff Gary Yasuda and his counsel, Stephen Shuman, Walter Lack, and Engstrom Lipscolm & Lack, LLC, are ORDERED, jointly and severally, to pay sanctions in the reduced amount of $2,500.00 (5 hrs at $500/hr). (Code Civ. Proc., § 2031.310, subd. (h).) Sanctions are to be paid within 30 days to Defendant’s counsel.

Defendant to give notice.