Brown v. Starwood Hotels & Resorts Worldwide CA2/7

Filed 11/17/21 Brown v. Starwood Hotels & Resorts Worldwide CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MARY BROWN, B304363

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. BC665796)

v.

STARWOOD HOTELS &

RESORTS WORLDWIDE,

INC.,

Defendant and

Respondent.

APPEAL from a judgment of the Superior Court of

Los Angeles County, Kristin S. Escalante, Judge. Affirmed.

Vaziri Law Group, Siamak Vaziri and Mark J. Giannamore

for Plaintiff and Appellant.

Murchison & Cumming and Edmund G. Farrell for

Defendant and Respondent.

Mary Brown appeals the judgment entered after the trial

court granted summary judgment in favor of Starwood Hotels &

Resorts Worldwide, Inc. in Brown’s premises liability and

negligence lawsuit. Brown’s principal contention on appeal is

that the trial court should have imposed evidentiary and issue

sanctions and denied summary judgment because Starwood

failed to preserve surveillance video footage of her fall at a

Starwood-managed facility. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Brown’s Fall

In late June 2015 Brown was staying at the Sheraton

Fairplex Hotel & Conference Center (Sheraton Fairplex) in

Pomona with her great-granddaughter, who was participating in

a beauty pageant being held at the conference center. Starwood

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managed the Sheraton Fairplex during the relevant time period.

At 1:30 p.m. on the last day of her stay, Sunday, June 28, 2015,

Brown tripped as she was leaving the conference center and fell

into the glass doors at the entryway and onto the hard surface

(terrazzo) interior floor. Paramedics were called, and Brown was

taken to the Pomona Valley Hospital for X-rays and treatment.

1

A separate entity, Fairplex, owned the building where

Brown fell. The facility was managed by Starwood, which owned

the Sheraton brand. As reported in its 2016 Form 10-K, in

September 2016 Marriott International, Inc. completed the

acquisition of Starwood Hotels & Resorts Worldwide, Inc.

(Marriott Financial Reports and Proxy <https://marriott.gcs-

web.com/static-files/eb3efa90-4311-454f-a430-0e03f2344ee0> [as

of Nov. 17, 2021], archived at <https://perma.cc/ZTB8-364U>.

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2. Brown’s Lawsuit

On June 20, 2017 Brown filed an unverified complaint

against Starwood for premises liability and negligence. In her

complaint Brown alleged, when she was walking out of the

conference center on June 28, 2015, she tripped on a foreign

object that had been left unattended on the floor, creating a

dangerous condition. Brown further alleged Starwood failed to

maintain the floors of the conference center in a reasonably safe

condition, and Starwood knew, or in the exercise of reasonable

care should have known, a foreign object on the floor in an area

where hotel and conference center guests walked created an

unreasonable risk of harm to its guests.

In special interrogatory responses served in March 2018,

Brown averred that, while leaving the conference center, she

“tripped on a mat, that was misshapen, misplaced, unsecured or

otherwise defective, in front of Defendant’s doorway. [Brown] fell

forward striking her head and body on Defendant’s glass door.”

3. Brown’s Deposition

Starwood deposed Brown on May 8, 2018. Brown testified

she was walking across the hard floor surface toward the doors to

leave the conference center, looking straight ahead to the outside,

when she felt a “catching feeling” and started to fall forward. She

described her feet as going three or four steps forward in

“perpetual motion” as she tried to stop herself. Her head, left

shoulder and right arm or shoulder hit the glass sliding doors,

and she fell to the ground.

Brown testified she believed there was a mat on the hard

surface floor leading to the conference center entrance,

approximately three to five feet from the door. However, Brown

explained that before the fall she was not looking at the ground

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and does not recall seeing a mat on the floor. Nor was she aware

she was crossing a mat when her foot caught. Once she had

fallen, she did not look around to see what may have caused her

to fall. Brown also had no recollection of a mat being on the floor

inside the sliding glass doors at the entrance to the convention

center at any time during the three days she was attending the

pageant with her great-granddaughter.

At the time of her fall Brown was wearing Sketchers

walking shoes with a rip toward the right heel, a tear forming on

the left heel and significant wear on both shoes near the toe.

4. Starwood’s Motion for Summary Judgment

The month after Brown’s deposition Starwood moved for

summary judgment or, in the alternative, summary adjudication

as to each of Brown’s two causes of action, asserting there was no

evidence the area where Brown fell was unreasonably slippery or

contained any material or object that created a danger of slipping

or tripping. Accordingly, Starwood argued, Brown could not

prove breach of duty or causation.

In addition to portions of Brown’s deposition testimony

explaining she had not seen a mat before, during or after her fall,

Starwood’s supporting papers included excerpts from the

deposition testimony of Sheraton employee Charles Bakewell,

who arrived at the accident scene approximately two minutes

after Brown fell. Bakewell testified he checked the interior

terrazzo floor where the accident had occurred, as well as the

surrounding area, when he arrived to determine what may have

caused Brown’s fall, specifically looking for a mat, debris or

spilled water. He did not see anything that could have

contributed to the fall. Bakewell had not received any complaints

about the flooring, entryway or front doors prior to Brown’s fall.

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In a declaration submitted with Starwood’s moving papers,

Paolo Dimailig, the manager on duty, similarly stated he learned

of Brown’s fall within a few minutes of the incident and walked

over to the conference center where Brown was receiving medical

attention while still sitting on the floor. Dimailig inspected the

hard surface floor at and near where Brown fell and did not see

any mats, debris, water or any other noticeable substances that

could have contributed to the fall.

In his deposition testimony Bakewell reported there was

surveillance video footage of the fall (approximately 10 seconds

long), which he reviewed within two hours of the incident.

Bakewell did not ask anyone to retain the video footage,

explaining, “That is not something my position would.” The

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footage was not preserved.

2

Bakewell testified the video footage captured Brown’s full

body, from her head to her feet, as she approached the front

entrance to the conference center. Brown appeared to be

“shuffl[ing]” toward the entrance: “It didn’t look like she was

picking up her feet. A little bit of a side to side motion when she

walked.” As far as Bakewell could tell, “she tripped on her own

feet. . . . There were no debris, no mats, no water. The area was

clean and clear. And many other guests had been using the same

area that day.” Asked by Brown’s counsel to do so, Bakewell

estimated Brown was about five feet two inches tall and weighed

more than 200 pounds.

In her response to Starwood’s separate statement Brown

“disputed” Starwood’s use of this testimony because the video

footage had not been preserved and stated she would seek to

exclude the testimony on that basis. However, the record on

appeal does not include any written objections by Brown to

Starwood’s evidentiary presentation, and it does not appear any

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According to the deposition testimony of Roger Martinez,

director of engineering at the time of the incident, the

surveillance cameras were controlled by Fairplex, which owned

the convention center, not Starwood (or Sheraton). Martinez did

not request the video be preserved because “I didn’t know that we

can get sued.” There was no protocol in place to preserve video

footage of all incidents in which a guest was injured. When

Martinez learned of Brown’s lawsuit, he contacted Fairplex and

was informed surveillance video was preserved for only 30 days.

5. Brown’s Opposition to the Motion

In her opposition to the motion Brown argued her

testimony that she believed her foot caught on a mat as she was

leaving the conference center was sufficient to defeat summary

judgment, contending, “While defendant offers a declaration and

deposition testimony that a trip hazard was not seen, it does not

rule out that plaintiff caught her foot on some dangerous

condition on the hardwood floor.”

In addition, Brown argued Starwood’s failure to preserve

the surveillance video footage of her fall constituted spoliation of

evidence that, even if not intentional, warranted the imposition of

issue and evidentiary sanctions, “including the striking of

Mr. Bakewell’s testimony and a finding that a dangerous

condition caused plaintiff to fall at the hotel conference center.”

Brown’s opposition papers included excerpts from her deposition

and from the depositions of Bakewell and Martinez.

In its reply memorandum in support of the motion,

Starwood argued there is no requirement under California law

were filed, as required by California Rules of Court,

rules 3.1352(1) and 3.1354.

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that evidence be preserved prior to the filing of a lawsuit,

particularly where, as here, the evidence is in control of another

entity (Fairplex).

6. The Trial Court’s Order Granting Summary Judgment

The trial court granted Starwood’s motion for summary

judgment. The court ruled Starwood had carried its initial

burden with a prima facie showing there was no floor mat or any

other impediment that caused Brown’s fall and Brown had failed

to present evidence sufficient to raise a genuine issue on that

point. The court explained Brown had admitted in her deposition

that she did not see a floor mat and had no present recollection

one was there and provided no other evidence regarding the

presence of any impediment that caused the fall. Her speculation

as to the reason for her fall, the court continued, is not sufficient

to raise an inference that a dangerous condition was present.

The trial court rejected Brown’s arguments that Starwood’s

failure to preserve the surveillance video gave rise to an inference

a dangerous condition existed or, as spoliation of evidence,

justified an order establishing liability as an issue sanction,

ruling Brown had failed to show Starwood had a duty to preserve

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the video footage at the time it was destroyed. Brown did not

3

Noting the surveillance cameras and video footage were

controlled by “Fairplex,” which in the regular course of business

retained such footage only for 30 days, the court explained no

evidence had been presented regarding the relationship between

Fairplex and Starwood, specifically whether Fairplex was a

separate entity or shorthand for the Sheraton Fairplex Hotel &

Conference Center, which was owned and controlled by Starwood.

The court assumed for purpose of ruling on the motion that

Starwood controlled Fairplex.

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send an evidence preservation demand letter or otherwise

provide notice she intended to assert a claim against the hotel

prior to the time the video was overwritten or otherwise

destroyed, the court wrote; and she provided no evidence of

willful suppression of evidence within the meaning of Evidence

Code section 413. “Plaintiff has provided no authority for the

proposition that Defendant had a duty to collect, retain and

preserve all evidence related to the incident and to suspend all

normal record recycling procedures before Plaintiff put Defendant

on notice that she intended to assert a claim and in the absence

of any request to preserve evidence.” Finally, because “[t]here

has been no showing of an abuse of the discovery process,” the

court ruled Brown was not entitled to evidentiary or issue

sanctions.

DISCUSSION

1. Standard of Review

A motion for summary judgment is properly granted only

when “all the papers submitted show that there is no triable

issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” (Code Civ. Proc., § 437c,

subd. (c).) We review a grant of summary judgment de novo

(Samara v. Matar (2018) 5 Cal.5th 322, 338) and, viewing the

evidence in the light most favorable to the nonmoving party

(Regents of University of California v. Superior Court (2018)

4 Cal.5th 607, 618), decide independently whether the facts not

subject to triable dispute warrant judgment for the moving party

as a matter of law. (Hampton v. County of San Diego (2015)

62 Cal.4th 340, 347; Schachter v. Citigroup, Inc. (2009) 47 Cal.4th

610, 618.)

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To the extent Brown’s opposition to the summary judgment

motion can be deemed to include a request for evidentiary

sanctions, we review the trial court’s ruling under the deferential

abuse of discretion standard. (Van v. LanguageLine Solutions

(2017) 8 Cal.App.5th 73, 80 [“[o]rders imposing discovery

sanctions are reviewed under the abuse of discretion standard

and are subject to reversal only for arbitrary, capricious, or

whimsical action”]; accord, Department of Forestry & Fire

Protection v. Howell (2017) 18 Cal.App.5th 154, 191; see Williams

v. Russ (2008) 167 Cal.App.4th 1215, 1224 [trial court’s sanction

order followed alleged spoliation of evidence reviewed for abuse of

discretion]; R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999)

75 Cal.App.4th 486, 496-497 [same].)

2. The Trial Court Properly Granted Starwood’s Motion for

Summary Judgment

“The elements of a negligence claim and a premises liability

claim are the same: a legal duty of care, breach of that duty, and

proximate cause resulting in injury. [Citations.] Premises

liability ‘“is grounded in the possession of the premises and the

attendant right to control and manage the premises”’;

accordingly, ‘“mere possession with its attendant right to control

conditions on the premises is a sufficient basis for the imposition

of an affirmative duty to act.”’ [Citation.] But the duty arising

from possession and control of property is adherence to the same

standard of care that applies in negligence cases.” (Kesner v.

Superior Court (2016) 1 Cal.5th 1132, 1158; see Alcaraz v. Vece

(1997) 14 Cal.4th 1149, 1156 [“‘[t]he proper test to be applied to

the liability of the possessor of land . . . is whether in the

management of his property he has acted as a reasonable man in

view of the probability of injury to others’”].)

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Brown’s lawsuit, asserting causes of action for premises

liability and negligence against Starwood, required her to prove

an unsafe or dangerous condition existed at the convention center

where she slipped and fell and Starwood knew, or should have

known, of the existence of that condition. (See Taylor v. Trimble

(2017) 13 Cal.App.5th 934, 943-944 [“An owner of real property is

‘not the insurer of [a] visitor’s personal safety . . . .’ [Citation.]

However, an owner is responsible ‘“for an injury occasioned to

another by [the owner’s] want of ordinary care or skill in the

management of his or her property. . . .”’ [Citation.] Accordingly,

landowners are required ‘to maintain land in their possession

and control in a reasonably safe condition,’ [citation] and to use

due care to eliminate dangerous conditions on their property”];

Howard v. Omni Hotels Management Corp. (2012)

203 Cal.App.4th 403, 432 [“The fact that an accident occurred

does not give rise to a presumption that it was caused by

negligence. [Citation.] Instead, the injured plaintiff must

establish sufficient facts or circumstances that support an

inference of a breach of duty, to defeat a summary judgment

motion by a defendant that is asserting due care was exercised”];

see also CACI No. 1001: Basic Duty of Care [“A person who

[owns or controls] property is negligent if that person fails to use

reasonable care to keep the property in a reasonably safe

condition. A person who [owns or controls] property must use

reasonable care to discover any unsafe conditions and to repair,

replace, or give adequate warning of anything that could be

reasonably expected to harm others”].)

Brown contends the trial court erred in concluding she

failed to demonstrate a triable issue of material fact regarding a

dangerous condition because, with the imposition of appropriate

10

issue and evidentiary sanctions, Starwood could not have

contested liability and, in any event, her discovery responses

created a sufficient conflict regarding the presence of an unsafe

condition to defeat summary judgment. Neither argument has

merit.

a. Starwood’s failure to preserve the surveillance video

did not create a triable issue of material fact

In Cedars-Sinai Medical Center v. Superior Court (1998)

18 Cal.4th 1 (Cedars-Sinai) the Supreme Court held there does

not exist a separate tort cause of action for intentional spoliation

of evidence—the intentional destruction or suppression of

evidence—when the alleged intentional spoliation is committed

by a party to the underlying cause of action to which the evidence

is relevant and when the spoliation is, or reasonably should have

been, discovered before the conclusion of the underlying

litigation. (Id. at p. 4.) Acknowledging that “[t]he intentional

destruction of evidence is a grave affront to the cause of justice

and deserves our unqualified condemnation,” the Court held it

was “preferable to rely on existing nontort remedies rather than

creating a tort remedy.” (Ibid.) In particular, the Court

explained that Evidence Code section 413 and standard civil jury

instructions authorized the finder of fact to consider willful

suppression of evidence when evaluating the inferences to be

drawn from the evidence presented (Cedars-Sinai, at p. 12) and

“potent” sanctions, including issue sanctions, evidence sanctions

and terminating sanctions, are available under the discovery

statutes for misuse of the discovery process. (Ibid.) The Court

observed, “Destroying evidence in response to a discovery request

after litigation has commenced would surely be a misuse of

discovery within the meaning of [Code of Civil Procedure former]

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section 2023, as would such destruction in anticipation of a

discovery request.” (Ibid.)

Glossing over the willful nature of the spoliation discussed

by the Supreme Court in Cedars-Sinai, supra, 18 Cal.4th 1—that

is, intentional destruction with the intent to suppress evidence

notwithstanding a discovery demand—Brown suggests any

failure to preserve material that might later be relevant in a

lawsuit constitutes spoliation and warrants imposition of

evidentiary and issue sanctions. She cites no California law for

this novel proposition, and the two federal cases cited do not

support her argument.

In Zubulake v. UBS Warburg LLC (S.D.N.Y. 2003)

220 F.R.D. 212, an employment discrimination case, the federal

district court ruled the “trigger date” for the preservation of

evidence was when litigation was reasonably anticipated.

“Merely because one or two employees contemplate the possibility

that a fellow employee might sue does not generally impose a

firm-wide duty to preserve. But in this case, it appears that

almost everyone associated with Zubulake recognized the

possibility that she might sue. . . . [¶] Thus, the relevant people

at UBS anticipated litigation in April 2001. The duty to preserve

attached at the time that litigation was reasonably anticipated.”

(Id. at p. 217.) Similarly, in Silvestri v. General Motors Corp. (4th

Cir. 2001) 271 F.3d 583, 591 the Court of Appeals held, “The duty

to preserve material evidence arises not only during litigation but

also extends to that period before the litigation when a party

reasonably should know that the evidence may be relevant to

anticipated litigation.”

Here, the evidence was that none of the Starwood

employees who responded to the accident scene saw any

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indication of a dangerous or unsafe condition that may have

contributed to Brown’s slip and fall. Thus, neither they nor their

employer had any reason to anticipate a lawsuit by Brown in

June or July 2015. Moreover, there was no evidence Starwood’s

failure to request that Fairplex retain video footage of the

accident violated any formal corporate policy or informal practice

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at the conference center. Accordingly, the trial court’s ruling

that Starwood had no duty to preserve evidence prior to notice

that Brown intended to file a lawsuit, which occurred nearly

two years after the surveillance video was overwritten, was well

within its discretion. There was no intentional, prelitigation

spoliation or misuse of the discovery process that would justify

imposition of sanctions pursuant to Code of Civil Procedure

section 2023.030. (Cf. Williams v. Russ, supra, 167 Cal.App.4th

at p. 1227 [ample evidence supported finding that client

intentionally destroyed his file while legal malpractice case was

pending; because client did not establish lawyer could reconstruct

the missing file, terminating sanction for the misconduct was not

an abuse of discretion].)

b. Brown’s interrogatory response and deposition

testimony did not create a triable issue of material

fact

In verified responses to special interrogatories Brown

stated she tripped on a defective or unsecured mat in front of the

entrance to the conference center. Similarly, at her deposition

Brown testified she believed her foot caught on a mat that was

4

Given the litigious nature of our society, it certainly would

have been prudent for Starwood to retain video evidence of all

accidents regardless of apparent fault. However, lack of foresight

is not a ground for sanctions.

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placed three to five feet in front of the entryway. That evidence,

Brown contends, was sufficient to create a triable issue of

material fact concerning the existence of a dangerous condition

that caused her fall.

“There is a triable issue of material fact if, and only if, the

evidence would allow a reasonable trier of fact to find the

underlying fact in favor of the party opposing the motion in

accordance with the applicable standard of proof.” (Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850; accord, Arvizu

v. City of Pasadena (2018) 21 Cal.App.5th 760, 763 [“[a] triable

issue of fact exists if the evidence would allow a reasonable trier

of fact to find the fact in favor of the party opposing summary

judgment”].) Brown’s meager evidence concerning the existence

of a mat or other foreign object that caused her foot to catch falls

far short of satisfying this standard.

Although Brown’s special interrogatory responses stated

she tripped on a mat, at her deposition Brown testified only that

she believed a mat was on the floor several feet in front of the

entryway. When questioned further, Brown acknowledged she

did not recall actually seeing a mat, either before or after the fall,

and had no awareness she was walking on a mat when she felt

her foot catch on something. Brown did not submit a declaration

in opposition to the summary judgment motion to reinforce her

interrogatory response, explain the basis for her belief, as

expressed at her deposition, that a mat was responsible for her

fall or provide any other support for her contention a dangerous

condition existed at the convention center entrance. (Cf. Code

Civ. Proc., § 2030.410 [precluding responding party’s use of her

own interrogatory answers].)

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Citing to pages in the clerk’s transcript containing

six photographs that were part of Starwood’s evidence in support

of its motion (exhibits identified at Brown’s deposition), Brown

asserts in her opening brief that she presented in opposition to

Starwood’s motion “photographic evidence that a floor mat had

been present at the accident scene,” stating these “post-accident

photographs of the area of the fall reveal the outline, residue,

dust and debris that the border of a floor mat leaves when it is

picked up from the floor.” However, there is no reference to these

photographs in Brown’s opposition to the summary judgment

motion, and her briefs in this court do not cite any portion of the

record that confirms her claim she presented the evidence to the

trial court. In addition, Brown in her appellate briefing does not

explain what in the photographs suggests a mat had been present

and removed. (See generally Guthrey v. State of California (1998)

63 Cal.App.4th 1108, 1115 [“‘reviewing court is not required to

make an independent unassisted study of the record in search of

error or grounds to support the judgment’”]; Mansell v. Board of

Administration (1994) 30 Cal.App.4th 539, 545-546 [not role of

reviewing court to act as “backup counsel” for appellant].)

For his part, Bakewell testified he was on the scene within

two minutes of the fall and specifically looked for anything

(objects, debris or water) that might have contributed to the

accident. He found nothing. Similarly, Dimailig arrived within

minutes (while Brown was being treated by emergency

paramedics) and also saw nothing on the floor at or near where

Brown fell.

Even when viewed most favorably to Brown and without

considering Bakewell’s description of Brown’s fall as recorded on

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5

the surveillance video, the evidence before the trial court was

insufficient to establish a prima facie case a dangerous or unsafe

condition existed where she fell. (See Howard v. Omni Hotels

Management Corp., supra, 203 Cal.App,4th at p. 432 [to defeat a

summary judgment motion by a defendant asserting it exercised

due care, “[i]t is not enough for the plaintiff to provide

speculation or conjecture that a dangerous condition of property

might have been present at the time of the accident”]; Benavidez

v. San Jose Police Dept. (1999) 71 Cal.App.4th 853, 860 [“‘[i]n

determining whether any triable issue of material fact exists, the

trial court may, in its discretion, give great weight to admissions

made in deposition and disregard contradictory and self-serving

affidavits of the party’”]; cf. Shin v. Ahn (2007) 42 Cal.4th 482,

500, fn. 12 [“a party cannot create an issue of fact by a

declaration which contradicts his prior discovery responses”]; see

generally D’Amico v. Board of Medical Examiners (1974)

11 Cal.3d 1, 21 [where “‘there is a clear and unequivocal

admission by the plaintiff, himself [or herself], in his [or her]

deposition . . . we are forced to conclude there is no substantial

evidence of the existence of a triable issue of fact,’” italics

omitted].)

“[A]ll appellant can argue is that she slipped and fell. She

lost her balance for some unknown reason. She did not see

5

As noted, although Brown “disputed” Bakewell’s

description of her fall because the surveillance video had not been

preserved, she did not object to the evidence, which would appear

to be admissible as oral testimony of the content of a writing

under Evidence Code section 1523, subdivision (b), provided the

footage had been lost or destroyed “without fraudulent intent on

the part of the proponent of the evidence.”

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anything on the floor which caused her to slip and fall and did

not know what caused her to slip. In such a situation,

‘[n]egligence is never presumed.’” (Buehler v. Alpha Beta Co.

(1990) 224 Cal.App.3d 729, 734.) Summary judgment was

properly granted.

DISPOSITION

The judgment is affirmed. Starwood is to recover its costs

on appeal.

PERLUSS, P. J.

We concur:

SEGAL, J.

FEUER, J.

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