Irvine Co. v. Superior Court of Orange Cnty.

96 Cal.App.5th 858

314 Cal.Rptr.3d 533

The IRVINE COMPANY LLC, Petitioner,

v.The SUPERIOR COURT OF ORANGE COUNTY, Respondent;

Christina Demirelli, Real Party in Interest.

G061791

Court of Appeal, Fourth District, Division 3, California.

Filed September 28, 2023

Schumann Rosenberg & Arevalo, Kim Schumann, Jeffrey P. Cunningham, and Marlys K. Braun, Costa Mesa, for Petitioner.

No appearance for Respondent.

Dordick Law Corporation, Gary A. Dordick, Beverly Hills, and John M. Upton for Real Party in Interest Christina Demirelli.

OPINION

MOTOIKE, J.

After having consumed excessive amounts of alcohol, Christina Demirelli left a restaurant in the Fashion Island shopping center (Fashion Island) and walked through a nearby parking structure while engaging in "displays of nonsensical horseplay." She found herself on an upper story of the parking structure where she seated herself on a 43-inch tall perimeter wall, lost her balance, and fell backward out of the structure to the ground several stories below. Demirelli sustained serious injuries.

Demirelli sued The Irvine Company, which owned the parking structure, for premises liability, alleging the parking structure had a physical defect or dangerous condition. The Irvine Company filed a motion for summary judgment which the trial court denied. The Irvine Company filed a petition for writ of mandate, and we issued an order to show cause. We now grant The Irvine Company's petition.

In her opposition, Demirelli conceded the parking structure did not have a physical defect or dangerous condition. In the stead of her original theory, Demirelli asserted a new theory of liability—The Irvine Company had assumed a duty to her by hiring a security company charged with detecting and stopping horseplay according to the Fashion Island Code of Conduct. She argued The Irvine Company was liable for the security company's negligence in enforcing that code.

According to the California Supreme Court's decision in Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 248–249, 30 Cal.Rptr.3d 145, 113 P.3d 1159 ( Delgado ), such a theory of liability is not one of premises liability, but of negligent undertaking. The Delgado court explained "a defendant's undertaking will support the finding of a duty to another only if (a) the defendant's action increased the risk to another, or (b) the other person reasonably relied upon the undertaking to his or her detriment." ( Id. at p. 250, 30 Cal.Rptr.3d 145, 113 P.3d 1159.)

Here, The Irvine Company's retention of security services did not increase any risk to Demirelli and she did not rely on that undertaking to her detriment. Therefore, The Irvine Company did not owe a duty to Demirelli and summary judgment should have been granted.

SUMMARY OF UNDISPUTED FACTS AND DEMIRELLI'S ADDITIONAL MATERIAL FACTS

I. THE INCIDENT

On Sunday, July 14, 2019, Demirelli and her friend and roommate Emily Yoder, both in their mid-twenties, went to the Xanadu Café in Newport Beach for brunch and " ‘bottomless mimosas.’ " Beginning around 3:00 p.m., Demirelli consumed four to five alcohol beverages (mimosas) at Xanadu Café.

Demirelli and Yoder decided to "walk off" their intoxication by shopping at Fashion Island. They ended up at the Yard House restaurant in Fashion Island (Yard House) where, starting around 7:00 p.m., Demirelli consumed four gin martinis and smoked marijuana to the point that she was in a " ‘state of significant intoxication’ " and a danger to herself. Yoder drank two stout beers and one vodka martini.

The only food they had on their bar tab at Yard House that evening was a single order of Edamame soybeans. The bartender thought Demirelli appeared drunk and Yoder appeared " ‘buzzed’ " while she served them that evening.

About 30 minutes after arriving at Yard House, Demirelli and Yoder engaged in " ‘disruptive acts.’ " The bartender observed Demirelli and Yoder acting in an obnoxious manner; Yoder was crying loudly and Demirelli was yelling at her and giving her advice. Demirelli and Yoder were eventually asked to leave the restaurant.

At approximately 10:10 p.m., Yard House employee Justin Harris (a named defendant in Demirelli's lawsuit) encountered Demirelli and Yoder leaving the restaurant. Harris walked with them towards and then into the lowest level of the parking structure adjacent to the restaurant and then up to one of the higher levels. As the group walked to and through the parking structure, Demirelli "began rolling around on the floor of the structure, doing cartwheels, and [engaging in] similar displays of nonsensical horseplay." Demirelli " ‘exhibited behaviors indicative of extreme intoxication.’ " She had irrational and unintelligible speech, was unsteady in her walking, would sit and squat down at random times, had difficulty putting on her shoes, and had difficulty maintaining her equilibrium. After Demirelli went up a flight of stairs and Yoder followed, Harris left them and the structure.

About 15 minutes after Harris had left, Demirelli was seated on a "perimeter wall on what was likely an upper story of the parking garage with her legs to the inside of the structure and her back toward the outside." Yoder saw Demirelli sitting on the perimeter wall for several minutes and warned Demirelli, saying something to the effect of " ‘Don't do that’ " and " ‘Be careful.’ " Around 11:00 p.m., Demirelli lost her balance and fell backward out of the parking structure and to the ground several stories below. Demirelli sustained serious injuries, including a traumatic spinal cord injury. Demirelli's blood alcohol level was determined to be 0.30% from an 11:30 p.m. blood draw.

Demirelli and Yoder did not have any reason to be in the parking structure that evening, as neither had driven a vehicle to Fashion Island. Demirelli does not have any independent memory of the incident. She does not know how she got onto a perimeter wall of the parking structure or why she fell from the perimeter wall. Both Demirelli and Yoder believe that sitting on an elevated perimeter wall of a parking structure is dangerous.

II. THE PARKING STRUCTURE'S CONDITION

The 43-inch vertical height of the perimeter wall panels of the parking structure east of "Stairway [No.] 5" on the second through fourth levels met and exceeded the 42-inch minimum vertical height requirement of the applicable building code and complied with the building plan specifications for such wall panels. The lighting conditions in the parking structure located east of stairway No. 5, on the second through fourth levels, met and exceeded the applicable lighting requirements of the City of Newport Beach Municipal Code.

The perimeter wall panel of the parking structure from which Demirelli fell (whether on its second, third, or fourth level) did not present any dangerous condition and was safe for pedestrians using reasonable care. Neither that perimeter wall panel, nor its surrounding area, presented any characteristic which would have invited a pedestrian to climb or sit atop the wall panel.¹

Prior to the incident, The Irvine Company regularly inspected the parking structure and did not observe any problems or safety issues regarding the perimeter wall of the parking structure. "No department, agency, or other body of the government of the County of Orange or City of Newport Beach has issued any notice of violation or any other type of notice regarding the perimeter wall of [the] Parking Structure." Up until Demirelli filed the complaint, no entity or person had complained, otherwise stated, or provided notice to The Irvine Company that the perimeter wall of the parking structure presented any type of hazard or danger.

None of the other defendants in this action, including Yard House or Harris, has ever been the agent, servant, or employee of or a joint venturer with The Irvine Company.

III. SECURITY SERVICES AT FASHION ISLAND

The Irvine Company owns Fashion Island, including the subject parking structure. The Irvine Company contracted with Universal Protection Service, doing business as Allied Universal Security Services (Allied), to provide security services at Fashion Island. Pursuant to The Irvine Company's contract with Allied, the scope of security services to be provided included: (1) identifying and reporting security and safety issues, including fire hazards, leaking water pipes, and unlocked security doors; (2) ensuring prompt action is taken to prevent or minimize losses, accidents, fire, property damage, safety hazards, and security incidents; (3) warning violators of rule infractions such as loitering, smoking, or possession of contraband articles; (4) monitoring throughout security personnel shifts "all Common area corridors, sidewalks, roads, alleys, food courts, and people spaces for trash, debris, shopping carts, spills, hazards or property damage"; and (5) assisting The Irvine Company "by resolving any issue (example: picking up trash, cleaning up spills, shopping cart return) or report[ing] any liability issues (example: trip and fall hazards, utility failure, etc.) to [The Irvine Company] immediately." The contract also provided that Allied would train replacement security professionals on property procedures before "standing post."

The Irvine Company and Allied jointly developed a Security Operations Procedure Manual pertaining to Fashion Island, within which is the Fashion Island Code of Conduct. Fashion Island's security team and Allied were responsible for enforcing the code of conduct in effect on the date of the incident. The Security Operations Procedure Manual provides, inter alia: (1) security staff will focus on maintaining a visible security presence in all areas of the property and are responsible for providing customer service, detecting and responding to potential and actual safety concerns, and otherwise helping "prevent and/or reduce liability situations"; (2) security employees must continuously and proactively patrol their assigned areas, unless assigned to a fixed post...