Opinion
E070007
11-04-2019
RACHEL NAVARRO, Plaintiff, v. ADAM HUDSON et al., Cross-complainants and Appellants; UNIVERSAL SERVICES OF AMERICA, INC., Defendant, Cross-defendant and Respondent.
Wilson, Elser, Moskowitz, Edelman & Dicker and Ashley R. Morris for Cross-complainants and Appellants Adam Hudson and Mission Linen Supply Co. Bradley & Gmelich, Barry A. Bradley, John K. Flock and Dawn Cushman for Defendant, Cross-defendant and Respondent Universal Services of America, Inc. No appearance for Plaintiff Rachel Navarro.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INC1303550) OPINION APPEAL from the Superior Court of Riverside County. David M. Chapman, Judge. Dismissed. Wilson, Elser, Moskowitz, Edelman & Dicker and Ashley R. Morris for Cross-complainants and Appellants Adam Hudson and Mission Linen Supply Co. Bradley & Gmelich, Barry A. Bradley, John K. Flock and Dawn Cushman for Defendant, Cross-defendant and Respondent Universal Services of America, Inc. No appearance for Plaintiff Rachel Navarro.
This appeal presents the issue of whether a defendant with a final judgment in its favor determining no liability to plaintiff may be liable on another defendant's cross-complaint asserting claims for equitable indemnity, apportionment, contribution, and declaratory relief. The subject indemnity cross-complaint arose out of a premises liability and negligence action against defendants Adam Hudson (Hudson), Mission Linen Supply (Mission), Universal Services of America, Inc., dba Universal Protection Service (Universal), and others. Plaintiff Rachel Navarro sued defendants alleging the failure to remove a rolled-up mat at the hospital's emergency room (ER) entrance caused her injuries when she tripped over the mat and fell. Defendant, cross-defendant, and respondent Universal successfully moved for summary judgment on plaintiff's complaint and the cross-complaint of cross-complainants and appellants Hudson and Mission.
Aramark Corporation, Aramark Healthcare Support Services, and JFK Memorial Hospital, Inc. (hospital).
We note the record describes the item involved in the incident as a "mat," "carpet," and a "rug." For consistency, we will refer to the item as a mat.
Hudson and Mission appeal, contending the trial court "incorrectly decided" Universal neither controlled the premises nor breached a duty of care. In response, Universal contends its judgment against plaintiff bars Hudson and Mission's cross- complaint for equitable indemnity. Alternatively, Universal asserts there are no triable issues of fact as to plaintiff's claims of premises liability and negligence against Universal. We will not reach the merits of these issues because appellants request the appeal be dismissed. The request is unopposed. We therefore exercise our discretion and dismiss the appeal.
Plaintiff filed a notice of appeal; however, her appeal was dismissed on July 18, 2018, for failure to timely file an opening brief. The partial remittitur issued on September 19, 2018. The hospital did not appeal.
I. PROCEDURAL BACKGROUND AND FACTS
Universal provided "private security services" to the hospital pursuant to a security services agreement (the agreement). According to the agreement, Universal did not own, lease, occupy, or control the hospital, and it is not responsible for "the use, repair or maintenance of the hospital or the surrounding area where Plaintiff was allegedly injured." Rather, Universal was required to perform scheduled rounds within the hospital's grounds, escort hospital staff and visitors to their cars parked on the hospital's grounds, control access onto the premises, and protect the premises against theft, vandalism, and trespassing by observing and reporting.
The hospital had its own security management plan (hospital security plan) that defined a security officer's patrol duties as including the "[d]iscovery and notification of maintenance problems" and "of any conditions that may be a safety hazard." The hospital security plan mandated that "[s]ecurity personnel are assigned to stay with 5150 patients [who] come into the [ER]."
A "5150 patient" refers to Welfare and Institutions Code section 5150, which authorizes an involuntary detention of a person who "as a result of a mental health disorder, is a danger to others, or to himself or herself." (Id., at subd. (a).)
Sometime between 8:30 and 9:00 a.m., on July 16, 2012, Hudson, an employee of Mission, began replacing floor mats located in front of the hospital's doors, including the ER entrance. He placed a rolled-up mat against the wall near the ER entrance and inadvertently left it there. At some undisclosed time, the rolled-up mat fell to the ground and was laying in the walkway. It is unknown how long the mat had been there.
We note plaintiff's response to special interrogatory No. 1 states the incident "occurred on July 19, 2012."
When changing multiple mats in close proximity, Hudson would take a clean mat to the first location and lean it against a wall, then he would repeat this process at the subsequent locations. At the last location, Hudson would pick up the dirty mat and fold it, lay a clean mat on the ground, and take the dirty mat to the next location. He repeated this process at each location until returning to the first location, where he would lay a clean mat on the ground and then take all of the dirty mats to his truck. If a mat did not stay up against the wall, he would "lay it down against the side of the wall to make sure [it did not] become a trip hazard."
Jose Duenas, a shift supervisor/security officer for Universal at the hospital, was responsible for patrolling the hospital premises throughout the day, with no set times, and monitoring 5150 patients. On any given day, the hospital had one Universal security officer in the maternity ward, another officer walking around to patrol areas, and Duenas as the supervisor. Duenas often saw Hudson delivering clean mats and exchanging them for dirty ones. Hudson would lean a rolled-up mat against the hospital's outer wall while he picked up the mat to be exchanged. At approximately 10:00 a.m., on July 16, 2012, Duenas was making his rounds when he observed Hudson at the hospital's ER entrance in the process of exchanging a clean mat for a dirty one. Duenas "observed that Mr. Hudson had leaned a rolled up mat against the wall." He did not consider this to be a safety hazard or dangerous condition, which required intervention, because the mat was under Hudson's control and supervision. Duenas continued making his rounds.
Duenas did not observe Hudson leave the premises, and he did not see a mat "laying on the ground." Prior to the incident, "no one advised [him] the subject mat was still leaning up against the wall or was observed laying on the ground across the walkway by the [ER]." The mat was not discovered by Universal prior to plaintiff's accident due to the admission of a 5150 patient to the ER. Upon the admission of a 5150 patient, the security patrol rotations are modified, and a security officer is required to monitor the 5150 patient at all times. Because a 5150 patient required the attention of a Universal security officer, "neither [Duenas] nor any other [Universal] Security Officer was able to perform rounds from the time [Duenas] first observed Mr. Hudson up to the time of the Incident." Duenas was inside the ER assisting the nurses with "aggressive" and "5150" patients from 11:00 a.m. to 1:30 p.m.
Prior to plaintiff's accident, the hospital's director of security, Gary Lee Harris, personally observed a mat leaning against a wall. Harris determined the mat did not constitute a "safety hazard" under the hospital security plan.
At approximately 1:10 p.m., on July 16, 2012, plaintiff tripped and fell as she exited the hospital's ER entrance. After Harris was notified of plaintiff's accident, he observed the rolled-up mat "laying on the ground," "in the walkway."
On May 31, 2013, plaintiff sued Hudson, Mission, the hospital, and Universal. She alleged "she exited the [ER], where she tripped over a large rolled up mat, resulting in [her] falling face first to the ground, causing [her] to sustain serious and severe injuries." Her complaint for personal injuries asserted claims for premises liability and negligence. Defendants filed cross-actions against each other. The only claims Hudson and Mission asserted against Universal were equitable/implied indemnity, apportionment/contribution, and declaratory relief.
Universal moved for summary judgment against plaintiff on her complaint, and against Hudson, Mission, and the hospital on their cross-complaints. Universal asserted it was not responsible for the alleged dangerous condition—a rolled-up mat in the walkway—on the property because it did not own, lease, occupy, or control the premises, and it did not create or possess constructive knowledge of the alleged dangerous condition. If Universal was not liable to plaintiff, then Universal claimed the cross-complaint of Hudson and Mission had no merit. Hudson and Mission opposed the motion for summary judgment on the grounds Universal was liable in premises liability as the hospital's security subcontractor, and there were triable issues of fact as to Universal's duty and breach of that duty to plaintiff.
On December 6, 2017, the trial court granted Universal's motion for summary judgment against plaintiff. The court found no triable issues of fact regarding premises liability because Universal did not control the physical premises outside the hospital's ER and, even if it did, there was no evidence the rolled-up mat was in the walkway for any appreciable period of time such that Universal (Duenas) should have seen and reported it. Regarding negligence, the court found no evidence that Universal (Duenas, or any other security officer) observed the rolled-up mat unattended or in the walkway, such that it had a duty to report the matter, and any duty to report did not include a duty to "alleviate the safety hazard." The court pointed out that Harris, the hospital's director of security, was aware of the mat leaning against the wall, but took no action to remedy the situation and did not deem it to be a safety hazard. Based on these findings, the court concluded there was no merit to Hudson and Mission's claims for indemnity, apportionment, contribution, and declaratory relief. Notice of entry of judgment was filed on January 31, 2018.
II. REQUEST FOR DISMISSAL
After this case was fully briefed and a tentative opinion had been drafted and mailed to the parties, counsel for both sides provided a notice of settlement and a separate stipulated request for dismissal of appeal was filed by appellants' counsel.
An appellant may not dismiss an appeal as a matter of right. (Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1160 [imposing $6,000 sanctions on attorney for unreasonable delay in notifying appellate court that parties had settled and dismissed the underlying case].) Rather, pursuant to California Rules of Court, rule 8.244(c)(2), "On receipt of a request or stipulation to dismiss, the court may dismiss the appeal and direct immediate issuance of the remittitur." (Italics added.) Thus, dismissal is discretionary. Here, because the resolution of this case is fact specific, we grant the request.
III. DISPOSITION
The appeal is dismissed. No costs are awarded on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
Acting P. J. We concur: SLOUGH
J. FIELDS
J.