Filed 9/22/21 Devries v. Renaissance Hotel Management Co. 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

LAURIE DEVRIES et al

.,

Plaintiff s and Appellant s ,

v.

RENAISSANCE HOTEL MANAGEMENT COMPANY, LLC et al

., Defendant s and Responden ts

. B298045

(Los Angeles County Super. Ct. No. BC552750)

APPEAL from a judgment of the Superior Court of
Los Angeles County, Timothy Patrick Dillon, Judge. Affirmed.
Law Offices of Alain V. Bonavida and Alain V. Bonavida for
Plaintiff s and Appellant s

. Ford, Walker, Haggerty & Behar and Edye A

. Hill for
Defendant s and Respondent s

.

___________________2 Laurie Devries slipped on a wet surface at the entranc e to the Renaissance LAX Hotel and broke her leg. She and her husband, Lee Devries , sued Renaissance Hotel Management Company, LLC, Sunstone Hotel Investors, Inc., Renaissance Hotel Operating Company and Sunstone LA Airport LLC ( collectively Renaissance c ompanies ) , entities that own or control the hotel, for negligence, premises liability and loss of
consortium. A jury found in favor of the Renaissance companies, and judgment was entered in their favor. On appeal the Devrieses contend the trial court comm itted prejudicial error in excluding from evidence a video of an
unrelated accident at the h otel. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND

1. The Accident On November 17, 20 12
, after a six

- hour flight, the
Devries es arrived at the Renaissance LAX Hot el with their son and daughter

. After registering, t hey went to their room to change for dinner. Laurie Devries put on rubber

- sole d sandals (flip

- flops)

. The family walked across the street in the rain
without umbrellas to a fast

- food restaurant.
Retu rning to the h otel

, the Devrieses walked on wet sidewalks, across a wet street and through the wet valet area. As
Laurie Devries approached the h otel , she encountered a sign i n her path, stepped around it and walked into the hotel without crossing the flo or mat at the entrance. As she crossed the threshold, she slipped on the polished marble tile surface inside
the h otel’s front door

, falling on her right leg. The injury was serious. L aurie Devries suffered a broken tibia and fibula, went into shock and was transported by ambulance to a nearby hospital. Surgery was scheduled for3

10 days after the accident (after the family’s planned seven

- day Disney cruise vacation )

. T he surgeon inserted four screws and a rod through Laurie Devries’s right leg. As of the time of trial, s he
still ha d the rod and one screw in her leg.

2. The Complaint

T he Devries es sued the Renaissance c ompanies for

n egligence, p remises l iability and , as to Lee Devries, l oss of

c onsortium. The complaint alleged the Renaissance c ompan ies failed to cover a known dangerous condition (the wet

, slippery marble floor) with a floor mat and failed to have proper signage warning of a wet floor.

3. The Security Camera Footage
The Renaissance c ompanies pro vided video footage of
Laurie Devries ’ s accident , originally captured by a security camera and copied onto a smartphone by Bryan Williams, the
h otel’s loss prevention supervisor and manager on duty the night
of the accident

. The quality of the black

- and

- white video footage

was poor ; and the v ideo could only be viewed in fast

- forward speed, making it extremely difficult to determinate exactly what
had occurred

. In the video the Devries es can be seen approach ing the lobby entrance’s open sliding

- door

. Lee Devries and the couple’s daughter are walking in front of Laurie Devries and
the ir son. As Laurie Devries approaches the entrance, she walks around a sign. (It is impossible to read the words on the sign.)
Laurie Devries enters the lobby through the right side of the

entrance ; her son enter s through the left. Laurie Devries falls, and people rush toward her. The original footage from the hotel’s security camera , recorded at normal speed and with time and date stamps, was4

not preserved. The video recorded by Williams was admitted into
evi dence at trial.

4. The Motion i n Limine

T he Devries es sought to introduce video footage of an
accident that had occurred at the hotel on December 12, 2011, almost a year before Laurie Devries ’ s accident. As depicted in the contested video, a woman sl ipped and fell at a different

entrance to the h otel as she walked thro ugh a different kind of
door . The woman was in the company of two other women; all three were carrying packages

. The packages blocked the
camera’s view of the woman’s feet ; so the vide o did not show what type of shoes she was wearing, whether she walked on the floo r
mat and whether there was water on the floor. The Devries es argued the video was relevant to establish the h otel ’s prior notice
of the dangerous condition of its slippery f loors. T he y also intended to argue this better quality video demonstrate d the
Renaissance c ompanies could have produced a better video of
Laurie Devries’s accident

. The Renaissance companies moved in limine to exclude all evidence of unrelated personal in jury incidents at the hotel, including the December 12, 2011 video. After reviewing the two videos, the deposition testimony of the Devrieses’ expert witness

, Brad Avrit, and Williams ’s deposition

, the trial court granted the motion in limine, finding the December 2011 incident was not sufficiently similar to Laurie Devries’s accident to be admissible.
The court orally explained its ruling : “So in this situation, as I have said before, I’ve watched the video numerous times, and
it is a different

, in the court’s view

, situation. It’s a different doorway. It’s a different kind of door. It’s a closed door. It’s a mat inside the doorway covering the area that here it’s contended5

should have been

— had some protective something on it , whether
adhesive or a m at or something.

. . . Here we have a case where
there’s a s pecific area of the hotel that the plaintiff is focusing on

. It’s a specific area. It’s not a general are a

. It’s a very specific
three

- tile area where the claim is being made tha t th i s was a

s lippery

- when

- wet

- surface, and adequate precautions were not
taken , which is different in kind than the other video of the other
incident that the court watched. . . . ” “ So I say that there is little, if any, relevance to the other incident

. Balanced agai nst that, I see the potential for undue confusion, prejudice, and without any doubt, the consumption of an undue amount of time because once
th at other incident is introduced, then the c ourt has to examine
that entire situation and have in effect a case wi thin a case to try to understand what happened in that situation and what was the
cause of the incident . . .

. Under Evidence Code section 352, I think the relevance is questionable, if at all, and I’m balancing that against the potential for confusion, undue consumption of time, and prejudice to the defendants from introducing something that is different from, and not related to, the incident that we’re having a trial about. ”

5. The Trial and Verdict During the four

- day jury trial the Devrieses present ed
evidence there was no caution sign at the entrance to the hotel where Laurie Devries slipped on wet marble tiles , only a valet information sign. Williams, in contrast, testified there was a sign warning of the dangerous wet condition. The jury found i n favor of the Renaissance companies, concluding th ey had not been negligent.6 DISCUSSION

1. Governing Law and Standard of Review “Evidence of prior accidents is admissible to prove a defective condition, knowledge, or the cause of an accident, provided that the circumstances of the other accidents are similar and not too remote.” ( Elsworth v. Beech Aircraft Corp. (1984)
37 Cal.3d 540, 555; accord, Ault v. International Harvester Co. (1974) 13 Cal.3d 113, 121

- 122; see Salas v. Dep artmen t of Transportati on (2011) 198 Cal.App.4th 1058, 1072 [ “ [i] t is well settled that before evidence of previous accidents may be admitted to prove the existence of a dangerous condition, it must first be shown that the conditions under which the alleged previous accidents oc curred were the same or substantially similar to the one in question ”].) “ When evidence is offered to show only that defendant had notice of a dangerous condition, the requirement of similarity of circumstances is relaxed: ‘“ all that is required . . . is that the previous injury should be such as to
attract the defendant ’ s attention to the dangerous situation

. ”’” ( Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 404 .) “The question of admissibility of other accidents is primarily one for the trial court and is confined to its sound
discretion.” ( Salas v. Department of Transportation

, supra , 198 Cal.App.4th at p. 1072 .) Even if the other

- accident evidence is sufficiently similar to be relevant and otherwise admissible, however, the trial court has discretio n to exclude the evidence “if
its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleadin g the jury.” (Evid. Code, § 352.)7 “A trial court ’ s discretionary ruling under [Evidence Code section 352] “‘must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner t hat resulted in a manifest miscarriage of justice.”’” ( People v. Williams (2008) 43 Cal.4th 584, 634

- 635 ]; accord, People v. Mungia (2008) 44 Cal.4th 1101, 1130 [rulings made under Evidence Code section 352 “are reviewed for an abuse of discretion”]; see Phillips v. Honeywell
Internat. Inc. (2017) 9 Cal.App.5th 1061, 1081 [“[w] hen weighing probative value against the danger of prejudice, a trial court is deemed to have abused its discretion if its decision was arbitrary, capricious, or patently absurd and resulted in a manifest miscarriage of justice” ]; see generally People v. Flores (2020)
9 Cal.5th 371, 409 [the trial court’s evidentiary rulings are reviewed for abuse of discretion] ; Pannu v. Land Rover North America, Inc. (2011) 191 Cal.App.4th 1298, 131 7 [“[t]rial court rulings on the admissibility of evidence, whether in limine or during trial, are generally reviewed for abuse of discretion”]

. ) There is no abuse of discretion requiring reversal “‘“as long as
there exists a reasonable or even fairly deb atable justification

, under t he law, for the action taken.”’” ( People v. Moore (2011)
51 Cal.4th 1104, 1120; accord, G onzales v. Nork (1978) 20 Cal.3d 500, 507 ; Cahill v. San Diego Gas & Electric Co. (2011)
194 Cal.App.4th 939, 957

. )8 2. The Court Did No t Err i n Finding the Incidents Were Not Substantially Similar and Excluding the December 2011 Video Pursuant to Evidence Code Section 352

The trial court acted well within its discretion in determining the December 12, 2011 accident at the hotel was not

su fficiently similar to Laurie Devries ’ s accident such that
evidence of th at earlier incident should be admitted at trial as proof of the Renaissance companies’ notice of the allegedly dangerous condition responsible for Laurie Devries’s injuries . As
the co urt explained, the two events occurred nearly a year apart
and took place at different entrance s to the h otel , where the
door s , doorway s and flooring were apparently different. At the very least, because the woman who fell in 2011 was carrying packages t hat blocked the surveillance camera’s view of her feet and shoes, it was not possible to easily assess the
similarities between the two events . Admission of the 2011 video, therefore, would have led, as the trial court stated, to a “case within a case,” w ith the parties necessarily litigating the circumstances surrounding the earlier accident. The court’s finding under Evidence Code section 352 that these additional issues would require an undue consumption of time was certainly
reasonable.
In addition to its alleged relevance regarding notice of a dangerous condition, the Devries es argued the video of the earlier
incident was relevant to show the Renaissance c ompanies failed to produce the best evidence of Laurie Devries’s accident . The court’s ruling ex cluding the video, they insist, prevented them
from arguing the jury should draw an inference adverse to the Renaissance companies based on the poor quality of the copy of the surveillance camera footage made by Williams.9 This additional argument also fa ils. The 2011 video was

unnecessary for the Devrieses to make this point at trial , which they did through their cross

- examination of Williams, who had no adequate explanation for his failure to preserve the surveillance camera video footage, and during th eir closing argument.
In argument to the jury, for example, the Devrieses’ counsel told the jury, “So the hotel had the ability and the power to produce better evidence because they owned the signs. So they provided weaker evidence. They provided a very strange video
that’s dark and in fast

- forward motion for some odd reason, and the video they produced was Mr. Williams’ iPhone video of the surveillance system video, not an exported copy with time and date stamp and at normal speed. . . . So you should d istrust the
evidence of Mr. Williams’ declaration.” Additionally, the court instructed the jury with CACI No. 203, which states, “You may consider the ability of each party to provide evidence. If a party provided weaker evidence when it could have provi ded stronger evidence, you may distrust the weaker evidence.” Any minimal probative value from actually showing the jury a better quality video was plainly outweighed by the possibility of confusion and prejudice from playing footage of an entirely unrel ated slip

- and

- fall accident, even putting aside the undue consumption of time that would likely have ensued from
the need for additional evidence to explain the dissimilarities in
the two events. Excluding the video was not an abuse of
discretion.10 DISPO SITION The judgment is affirmed. The Renaissance companies are to recover their costs on appeal.

PERLUSS, P. J.

We concur:

FEUER

, J.

IBARRA, J. *

* Judge of the Santa Clara Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.