O'Malley v. Diamond Resorts Mgmt.

• Docket Number: G061459,G061674,G062420
• Decision Date: 07 November 2023
• Parties: PRISCILLA O'MALLEY et al., Plaintiffs and Respondents, v. DIAMOND RESORTS MANAGEMENT, INC., Defendant and Appellant.
• Court: California Court of Appeals Court of Appeals

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PRISCILLA O'MALLEY et al., Plaintiffs and Respondents, v. DIAMOND RESORTS MANAGEMENT, INC., Defendant and Appellant.

G061459, G061674, G062420

California Court of Appeals, Fourth District, Third Division

November 7, 2023

NOT TO BE PUBLISHED

Order Filed Date: 12/1/2023

Appeal from a judgment of the Superior Court of Orange County, No 30-2015-00771021 Frederick Paul Horn, Judge. Affirmed.

Horvitz & Levy, Dean A. Bochner, Emily V. Cuatto; Yoka Smith, Christopher E. Faenza and Martin S. McMahan for Defendant and Appellant.

The Homampour Law Firm, Arash Homampour; Biren Law Group, Matthew B.F. Biren, John A. Roberts; The Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiffs and Respondents.

ORDER MODIFYING OPINION AND DENYING PETITION FOR REHEARING; NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed herein on November 7, 2023, be modified as follows:

1. On page 26, second full paragraph, second complete sentence, add footnote 9, following the Paz, supra, 22 Cal.4th at p. 553 citation:

In a petition for rehearing, Diamond argued that the California Supreme Court has more recently expressed the negligent undertaking theory in terms of a plaintiff's "reasonable reliance" on a defendant's services, rather than simply a defendant's "reliance" on a plaintiff's services. (See Delgado v. Trax Bar &Grill (2005) 36 Cal.4th 224, 248-249.) But Diamond did not raise this argument in the trial court, so it has been forfeited for purposes of appeal. (See Kern County Dept. of Child Support Services v Camacho (2012) 209 Cal.App.4th 1028, 1038 ["It is axiomatic that arguments not raised in the trial court are forfeited on appeal"].)

2. On page 28, first complete paragraph, fourth complete sentence delete the citation Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235, and replace with Delgado v. Trax Bar &Grill, supra, 36 Cal.4th at p. 235.

This modification does not change the judgment.

The petition for rehearing is DENIED.

OPINION

MOORE, ACTING P. J.

Under what is known as the Good Samaritan rule, or the "negligent undertaking" theory of liability, "one who undertakes to aid another is under a duty to exercise due care in acting and is liable if the failure to do so increases the risk of harm or if the harm is suffered because the other relied on the undertaking." (Paz v. State of California (2000) 22 Cal.4th 550, 558-559 (Paz).)

Priscilla O'Malley checked into a hotel room. Her husband Michael repeatedly tried to call her, but she did not answer the phone. Michael called the hotel and said he was afraid Priscilla may have been "'hurt or injured . . . and she's not able to get to the phone.'" The hotel clerk agreed to send a maintenance worker to "go in the room and see if she's okay." But the worker reported the room was dark and no one was there. After several more hours of trying to contact Priscilla by phone, Michael drove to the hotel and went into Priscilla's room. The lights were on, and Priscilla was lying unconscious on the floor. Priscilla had a suffered a ruptured brain aneurism and she now has no ability to lay down new memories (anterograde amnesia).

The O'Malleys sued the operator of the hotel, Diamond Resorts Management, Inc. (Diamond) for loss of consortium and negligence, alleging the delay in getting Priscilla medical aid caused her injuries to worsen. The O'Malleys were awarded about $90 million in damages and prejudgment interest.

Diamond does not contest the amount of the award, but claims: the negligent undertaking theory fails as a matter of law and the trial court improperly instructed the jury on ordinary negligence; the O'Malleys failed to introduce competent evidence of causation; the court erred by allowing a doctor to read a portion of an article to the jury, and by admitting the hotel's written procedures for entering a room; the court erred by refusing to modify a jury instruction on the negligent undertaking theory, and by refusing to instruct the jury that hotel guests have a reasonable expectation of privacy; and the court erred by precluding Diamond from presenting a comparative fault defense.

We find no errors. Thus, we affirm the judgment.

I FACTS AND PROCEDURAL BACKGROUND

On Saturday, March 29, 2014, at about 10:00 a.m., Priscilla drove from the O'Malley's home in Riverside to the Diamond Resorts Hotel in Dana Point. The plan was for Michael to join Priscilla and her sister the next day, which was Priscilla's 59th birthday. Priscilla's cell phone was not working, so she took Michael's phone with her.

At about 1:00 p.m., Priscilla arrived in Dana Point for a facial appointment, which had been a gift from Michael. Priscilla called Michael to thank him just before she went in for the appointment.

At about 4:00 p.m., Priscilla checked into the time share hotel listing Michael and her sister as room guests. Priscilla called Michael to let him know she was in the room. The O'Malleys would ordinarily speak on the phone multiple times a day.

At about 6:00 p.m., Priscilla called Michael and told him she planned to stay in the room the rest of the evening, have a glass of wine, and watch the sunset.

At about 6:30 p.m., Priscilla likely suffered a brain aneurysm and collapsed on the hotel room floor.

At about 7:00 p.m., Michael called Priscilla to check in with her before they both went to sleep. Priscilla did not answer the cell phone, which was unusual.

At about 8:00 p.m., Michael again called Priscilla and she again failed to answer. For the next two and a half hours, Michael repeatedly called the cell phone, as well as the phone in Priscilla's room, and all of the calls went unanswered.

At about 10:30 p.m., Michael called the hotel and spoke to the front desk clerk, K. Mann. When Mann answered the phone, Michael told her, "'I need your help.'" Michael told Mann, "'I'm very worried. I've been trying to reach my wife on the cell phone and the room phone all evening, and she's not answering either one.'" Michael said, "'I'm afraid she could be hurt or injured -- sick or injured, and she's not able to get to the phone.'" Michael asked Mann, "if she can go to the room and go in the room and see if she's okay and to check on her." ^[1]

Mann first told Michael, "she would call the room; and she called the room." There was no answer. Mann "said she had somebody here at the desk; and she'd send him to the room; and she'd have him go in the room and see if she's okay." Mann told Michael, "'Try not to worry, and we'll call you right back.'"

Mann directed S. Ramos, a maintenance worker who was standing near the front desk "to go check on the room." Mann instructed Ramos: "'Go to the room; check to see if Ms. O'Malley is in the room.'"

Ramos had never done a "welfare check" of a room before. Ramos said he went to room 102, knocked on the door, and loudly said, "'Hello. Maintenance. Hello. Maintenance.'" Ramos said he opened the door using a key card and "called out . . . 'Hello. Maintenance. Hello.'" Ramos said he could not hear anything; "The entire room was mostly dark." Ramos did not enter the room because: "She could have been in the bathroom, getting out of the shower naked. She could have been sleeping. She could have been -- who knows." Ramos said, "I never went in the room." Ramos returned to the front desk and told Mann, "I didn't hear anybody; I didn't see anybody."

Mann called Michael and she told him Ramos had "went to the room; he went in; he checked the room; he went in and everything; and she was not in the room."

Michael was initially relieved Priscilla was not in her room. Michael thought, "maybe she went out to get something to eat and she left the phone behind and I'd hear from her soon." Michael continued to call Priscilla after 10:30 p.m., and "throughout the night."

At about 4:00 a.m., Michael drove from Riverside to Dana Point and arrived at the hotel about 5:15 a.m. Michael knocked on the front door of the lobby. The night clerk let him in and gave him a key to room 102.

Michael said, "as soon as the door cracked, I could see that the light from the bedroom was on." Michael said the lights from the bathroom were also on and the lights "were illuminating the hallway." Michael walked down the hall of the room and "heard and then saw her laying on the floor in the middle of the living room." Priscilla was breathing "in a slow, gasping-sounding breath." Michael tried to arouse Priscilla, but "she was just unable to respond."

Priscilla was initially taken to a hospital. Priscilla was then transferred to another hospital, where a CT scan of her brain was performed. Priscilla was diagnosed with a ruptured brain aneurysm that likely happened the prior evening at about 6:30 p.m.^[2] Priscilla also presented with hydrocephalus, which is a buildup of fluid in the brain. A neurosurgeon inserted a tube to drain the fluid.

Priscilla now suffers from an inability to lay down any new memories (anterograde amnesia). Priscilla cannot keep track of what she is doing from moment to moment. Priscilla "is incapable of independent thought, planning or organization."

Court Proceedings

The O'Malleys filed a complaint against Riviera Beach and Spa Resort (Riviera) and Diamond (the operator of the hotel) for loss of consortium and negligence. The O'Malleys later amended the complaint to add Ramos' employer Hospitality Services Solutions (HSS) as a defendant.

The trial court granted HSS's motion for summary judgment. This court reversed: "Under a negligent undertaking theory, we cannot say as a matter of law that the maintenance worker owed no legal duty. There are triable issues of material fact." (O'Malley v. Hospitality Services Solutions (2018) 20 Cal.App.5th 21, 24 (O'Malley).)

Prior to trial, the parties...