Judge: Anne Hwang, Case: 20STCV09961, Date: 2023-10-06 Tentative Ruling
Case Number: 20STCV09961 Hearing Date: October 6, 2023 Dept: 32
TENTATIVE
RULING
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DEPT: |
32 |
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HEARING DATE: |
October
6, 2023 |
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CASE NUMBER: |
20STCV09961 |
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MOTIONS: |
Motion
for Summary Judgment |
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Defendant Ralphs Grocery Company |
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OPPOSING PARTY: |
Unopposed
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MOVING PAPERS
1. Notice of Motion and Motion for Summary
Judgment; Memorandum of Points and Authorities; Declaration of Suzanne R.
Feffer
2. Separate Statement of Undisputed Facts
OPPOSITION PAPERS
1. None filed.
REPLY PAPERS
1. None filed
BACKGROUND
On March 11, 2020, Plaintiff
Sharona Shamtoub (Plaintiff) filed a complaint against Defendants Ralphs
Grocery Company, Alpha Beta Company, Kroger, and Does 1 to 50 for negligence,
premises liability, and negligent hiring, training, supervision, and retention.
Plaintiff alleges that on July 17, 2018, she was attacked on Defendants’
premises by a third person, near the entrance. She also alleges that Defendants’
employee negligently instigated an argument with the third person, which caused
them to become violent. (Complaint ¶ 7, 8.) Plaintiff alleges that Defendants
breached their duty of care by failing to keep the premise in a safe manner,
failing to provide security guards, failing to warn, and failing to train
employees. (Complaint ¶ 25.)
Defendant Ralphs Grocery
Company (Ralphs) now moves for summary judgment arguing that no triable issue
of material fact exists. In particular, Ralphs argues that Plaintiff cannot
establish that Ralphs had a duty to protect against criminal acts by
third-parties or that its acts caused Plaintiff’s injuries. No opposition has
been filed.
LEGAL
STANDARD
“[T]he party moving for summary judgment bears the burden of persuasion
that there is no triable issue of material fact and that he is entitled to
judgment as a matter of law[.] 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.) “[T]he party moving for summary judgment
bears an initial burden of production to make a prima facie showing of the
nonexistence of any triable issue of material fact; if he carries his burden of
production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie
showing of the existence of a triable issue of material fact.” (Ibid.;
Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474
[summary judgment standards held by Aguilar apply to summary
adjudication motions].) Further, in line
with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary
adjudication, the trial court has no discretion to exercise. If a triable issue of material fact exists as
to the challenged causes of action, the motion must be denied. If there is no
triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay
Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)
“On a summary judgment motion, the
court must therefore consider what inferences favoring the opposing party a
factfinder could reasonably draw from the evidence. While viewing the evidence
in this manner, the court must bear in mind that its primary function is to
identify issues rather than to determine issues. Only when the inferences are indisputable may
the court decide the issues as a matter of law. If the evidence is in conflict,
the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co.
(1999) 75 Cal.App.4th 832, 839 [cleaned up].)
Further, “the trial court may not weigh the evidence in the manner of a
factfinder to determine whose version is more likely true. Nor may the trial court grant summary
judgment based on the court's evaluation of credibility.” (Id. at p. 840
[cleaned up]; see also Weiss v. People ex rel. Department of Transportation
(2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or
summary adjudication may not weigh the evidence but must instead view it in the
light most favorable to the opposing party and draw all reasonable inferences
in favor of that party”].)
DISCUSSION
Negligence–Premises
Liability
A. Duty
The
elements of a cause of action for negligence are: (1) a duty on the part of
defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm
to the plaintiff caused by that breach. (Kesner v. Superior Court (2016)
1 Cal.5th 1132, 1142.) The elements of a cause of action for premises liability
are the same as those for negligence: duty, breach, causation, and damages. (McIntyre
v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)
Liability
in a premises liability action is based not on responsibility for the conduct
of others, but on the failure of the landowner or occupier to act reasonably
under the circumstances when he or she has reason to anticipate the probability
of injury and has an opportunity to prevent the injury or warn of the peril (Cody
F. v. Falleti (2001) 92 Cal.App.4th 1232, 1242, see Ann M. v. Pacific
Plaza Shopping Center (1993) 6 Cal.4th 666, 676 [a landowner’s duty to take
steps to prevent the wrongful acts of a third party is imposed only where such
conduct can be reasonably anticipated].) Accordingly, premises liability
alleges a defendant property owner either (1) allowed a dangerous condition on
its property or (2) failed to take reasonable steps to secure its property
against criminal acts by third parties. (Delgado v. American Multi-Cinema,
Inc. (1999) 72 Cal.App.4th 1403, 1406.)
Traditionally,
foreseeability of the risk does not necessarily turn on whether the same type
of activity or event already occurred on the premises. Rather, the issue
is whether, in light of all the facts
and circumstances (including the nature, condition and location of the
premises, as well as the landlord's prior experience), the owner had reason to
anticipate the general character of the event or harm, not its precise nature
or manner of occurrence. (Isaacs v. Huntington Memorial Hosp.
(1985) 38 Cal.3d 112, 129.) However, where a “burdensome” duty is to be
imposed on the landowner (e.g., requiring private security guards or other
heightened security measures), a “high degree of foreseeability” is required.
And “the requisite degree of foreseeability rarely, if ever, can be proven in
the absence of prior similar incidents of violent crime on the landowner's
premises.” (Ann M. v. Pacific Plaza Shopping Ctr. (1993) 6 Cal.4th
666, 679.)
“The defendant may […] present evidence that the plaintiff
does not possess, and cannot reasonably obtain, needed evidence—as through
admission by the plaintiff following extensive discovery to the effect that he
has discovered nothing.” (Aguilar v. Atlantic Richfield
Co. (2001) 25
Cal.4th 826, 855.) “[A] deemed admitted
order establishes, by judicial fiat, that a nonresponding party has responded
to the requests by admitting the truth of all matters contained therein.” (Wilcox
v. Birtwhistle (1999) 21 Cal.4th 973, 979, 90 Cal.Rptr.2d 260, 979; see
Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 971
[affirming summary judgment because plaintiff was deemed to have admitted that
defendant met the applicable standard of care, and there was no evidence that
she attempted to withdraw or amend the admission].)
Ralphs asserts that it propounded
Requests for Admissions on Plaintiff that were unanswered. (UMF 7.) On March 9,
2022, the Court granted Ralphs’ Motion to Have Requests Deemed Admitted. (UMF
8; Min. Order, March 9, 2022.) The following facts were deemed admitted:
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RALPHS did not create any dangerous condition
that caused the alleged incident. (UMF 9.)
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Plaintiff has no evidence that RALPHS created
any dangerous condition that caused the alleged incident. (UMF 10.)
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No dangerous condition existed in or about the
area the alleged incident at or about the time of the alleged incident. (UMF
11.)
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No dangerous condition caused the alleged
incident. (UMF 12.)
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Plaintiff has no evidence that, at any time
prior to the alleged incident, RALPHS knew about any dangerous condition that
caused the alleged incident with sufficient time to remedy the condition on the
date of the alleged Incident. (UMF 13.)
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Plaintiff has no evidence that, at any time
prior to the alleged incident, RALPHS should have known about any dangerous
condition that caused the alleged incident. (UMF 14.)
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Plaintiff had never been threatened by anyone
she believed was homeless outside the store where the incident occurred before
the date of the incident. (UMF 19.)
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Plaintiff is unaware of anyone who had been
threatened by anyone in the parking lot outside the store where the incident
occurred before the date of the incident. (UMF 20.)
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Plaintiff has no evidence of criminal activity
in the parking lot outside the store where the incident occurred before the
date of the incident. (UMF 21.)
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Plaintiff has no evidence that on or about the
date and time of the alleged incident, RALPHS was negligent in any fashion with
regard to the alleged incident. (UMF 22.)
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At no time since the court ordered the Requests
for Admission deemed admitted has plaintiff sought to set aside that order.
(UMF 23.)
Here, Ralphs has met its burden to show that there is no
triable issue of fact that it owed a duty to Plaintiff, that it breached a
duty, or that any alleged breach was the proximate or legal cause of
Plaintiff’s injuries. The burden now shifts to Plaintiff. Since Plaintiff does
not oppose this motion, she fails to meet her burden in establishing a triable
issue of material fact.
Negligent
Hiring, Training, Supervision, and Retention
“[A]n employer can be liable to a third
person for negligently hiring, supervising,
or retaining an unfit employee.”¿ (Doe v. Capital Cities (1996) 50
Cal.App.4th 1038, 1054.)¿ To establish a cause of action for negligent hiring, retention, or
supervision, a plaintiff must show that the employer knew or should have known
that hiring the employee created a particular risk or hazard and that particular
harm occurs.¿ (See Z.V. v. County of Riverside (2015) 238
Cal.App.4th 889, 902; see also Doe, supra, 50 Cal.App.4th at p.
1054.)¿ To be liable for negligent supervision and hiring, there must be
a connection between the employment and injury.¿ (Mendoza v. City of Los
Angeles (1998) 66 Cal.App.4th 1333, 1341.)¿“Liability for negligent hiring and supervision
is based upon the reasoning that if an enterprise hires individuals with
characteristics which might pose a danger to customers or other employees, the
enterprise should bear the loss caused by the wrongdoing of its incompetent or
unfit employees.¿ (Id. at 1339.)¿ “The tort has developed in California
in factual settings where the plaintiff’s injury occurred in the workplace, or
the contact between the plaintiff and the employee was generated by the
employment relationship.”¿ (Id. at pp. 1339-1340.)¿¿
Here, Ralphs offers the following facts:
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Shortly before the alleged incident, plaintiff
observed a man whom she believed was homeless acting aggressively toward
another man she believed was employed by RALPHS. (UMF 15.)
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It was reasonable for the man plaintiff believed
was employed by RALPHS to go back into the store after a man whom she believed
was homeless was yelling at him on the date of the incident. (UMF 16.)
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It was reasonable for the man plaintiff believed
was employed by RALPHS to go back into the store after a man whom she believed
was homeless was pushing a cart toward him on the date of the incident. (UMF
17.)
-
It was reasonable for the man plaintiff believed
was employed by RALPHS to go back into the store after a man whom she believed
was homeless was acting aggressively toward him on the date of the incident.
(UMF 18.)
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Plaintiff has no evidence that on or about the
date and time of the alleged incident, RALPHS was negligent in any fashion with
regard to the alleged incident. (UMF 22.)
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At no time since the court ordered the Requests
for Admission deemed admitted has plaintiff sought to set aside that order.
(UMF 23.)
Here, Ralphs has met its burden to show that there is no
triable issue of material fact as to this cause of action. The burden shifts to
Plaintiff. Since Plaintiff does not
oppose this motion, she fails to meet her burden in establishing a triable
issue of material fact.
CONCLUSION AND
ORDER
Based on the foregoing, Defendant Ralphs
Grocery Company’s Motion for Summary Judgment is GRANTED. Defendant shall file
a proposed judgment within 10 days.
Defendant shall
provide notice of this ruling and file a proof of service of such.