Judge Anne Hwang, Case Number: 21STCV13692, Date: 2023-08-16 Tentative Ruling

PLEASE NOTE: Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached. If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit. The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling. If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court. If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely. Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court.

1. Notice of Motion and Motion for Summary Judgment, or in the Alternative, Summary Adjudication

On April 12, 2021, Plaintiff Joseph Steward Renova, a minor by and through his Guardian Ad Litem, Andrea Stephanie Lomeli (“Plaintiff”), filed this action against Defendants Zheng Mao Huang (“Huang”), an individual dba Louisiana Fried Chicken and China Bowl (“Defendant”) and Does 1 to 20 inclusive, asserting one cause of action for premises liability.

The Complaint alleges the following. On May 4, 2019, Plaintiff slipped, fell, and sustained injuries at Defendant’s restaurant called Louisiana Fried Chicken and China Bowl in Los Angeles (the “Premises”). Defendant had negligently created a slippery walking surface condition that posed an unreasonable risk to customers and by failing to (among other things) adequately warn against or remove that condition. Defendant’s negligence caused Plaintiff’s slip and fall incident.

Defendant now moves for summary judgment or, in the alternative, for summary adjudication. Plaintiff opposes the motion. The motion was called for hearing on August 16, 2023. The Court continued the hearing and set a supplemental briefing schedule. (Min. Order, 8/16/23.)

On August 2, 2023, Plaintiff filed objections to the declaration of William P. Mullins, which declared that “attached as Exhibit ‘B’ [and ‘C’] to the concurrently filed Compendium of Evidence is a true and correct copy of Defendant LFC’s Camera 3 [and 7] video surveillance dated May 4, 2019…” (Mullins Decl. ¶¶ 3, 4.) “Supporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” (Code of Civ. Proc. § 437c(d).) Plaintiff objects on the grounds that the testimony lacks foundation or personal knowledge and lacks authentication. Defendant’s supplemental brief includes a declaration of Huang where he asserts under penalty of perjury that the video footage in Exhibits B and C accurately depict the store and the events of this lawsuit. (Huang Decl. ¶ 1-3.) Therefore, the objections are OVERRULED.

In Defendant’s Reply Brief, Defendant objects to Plaintiff’s declaration as “self-serving,” “containing conflicting statements,” and not supported by “what was caught on camera.” (Reply at pg. 3.) Defendant further argues that “[d]eclarations submitted in opposition to motions for summary judgment must cite evidentiary facts, not legal conclusions or ‘ultimate facts.’ [citation omitted.] ‘[U]ncorroborated and self-serving declarations’ do not create ‘genuine issues of fact.’ [citation omitted.] The court ‘[is] not required to accept … self-serving evidence.’” (Reply at pg. 3.)

However, Defendant has not cited to Plaintiff’s deposition testimony or any prior statement by Plaintiff, which contradicts Plaintiff’s declaration. Moreover, Plaintiff’s statements, particularly in paragraph 7, are evidentiary facts and not legal conclusions. The declaration is made under penalty of perjury and there is no showing that Plaintiff lacks personal knowledge or is incompetent with regard to what he saw or did not see in the restaurant.

“[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”].)

As an initial matter, the Court notes that Plaintiff argues that the motion violates Code of Civil Procedure section 437c, subdivision (a)(3) because it was scheduled for hearing 29 days (instead of the statutory 30 days) from the previous trial date. (Opposition, p. 2:2-7.)

However, on July 14, 2023, the Court granted Defendant’s ex parte application to continue trial. Plaintiff does not cite any authority holding that a party cannot move to continue trial while a motion for summary judgment is pending.

Defendant moves for summary judgment or summary adjudication, arguing (1) it did not have a duty to warn Plaintiff of an open and obvious condition (i.e., Huang was mopping the floor in plain view at the time of the incident) and (2) even if it owed Plaintiff a duty, it did not breach that duty because Defendant had a warning sign in place. (Code Civ. Proc., § 437c, subd. (f)(1) [providing that a party may move for summary adjudication at to one or more issues of duty].)

“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.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.) Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.)

“‘Breach of duty is usually a fact issue for the jury; if the circumstances permit a reasonable doubt whether the defendant’s conduct violates the standard of due care, the doubt must be resolved by the jury as an issue of fact rather than of law by the court. [Citation.]’ [Citations.]” (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207 (“Constance”).) “Similarly, ‘… the decision whether that breach caused the damage (that is, causation in fact) is again within the jury’s domain; but where reasonable men will not dispute the absence of causality, the court may take the decision from the jury and treat the question as one of law. [Citations.]’ [Citations.]” (Constance, supra, 178 Cal.App.3d at p. 207 [italics in original].)

“It is well established in California that although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205 (“Ortega”).) Specifically, “[a] store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers.” (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476.) “The care required is commensurate with the risks involved.” (Ibid.) “Thus, for example, if the owner operates a self-service grocery store, where customers are invited to inspect, remove, and replace goods on shelves, the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed.” (Ibid.)

“‘“Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” [Citation.] In that situation, owners and possessors of land are entitled to assume others will ‘perceive the obvious’ and take action to avoid the dangerous condition. [Citation.]’ [Citation.]” (Kaney v. Custance (2022) 74 Cal.App.5th 201, 215.) This is known as “the no-duty exception for open and obvious dangerous conditions ….” (Zuniga v. Cherry Avenue Auction, Inc. (2021) 61 Cal.App.5th 980, 993.) “[T]he rationale for the exception to the general duty of ordinary care is that the foreseeability of harm usually is absent because third parties will perceive the obvious and take action to avoid the danger.” (Id. at p. 994.)

“[T]he obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify it.”¿ (Martinez v. Chippewa Enterprises, Inc.¿(2004) 121 Cal.App.4th 1179, 1184 (hereafter Martinez).)¿ The obviousness of a danger “may obviate the duty to¿warn¿of its existence,” but “if it is¿foreseeable¿that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it), there may be a duty to¿remedy¿the danger, and the breach of that duty may in turn form the basis for liability . . . .”¿ (Osborn v. Mission Ready Mix¿(1990) 224 Cal.App.3d 104, 122 (hereafter Osborn).)

Although “the existence of a duty of care is a matter of law,” “[t]he foreseeability of a particular plaintiff’s injury is a question of fact.” (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1330, fn. 9.)

“‘It is ordinarily a question of fact … whether [a] particular danger was obvious, [or] whether an invitee was contributorily negligent ….’ [Citations.]” (Henderson v. McGill (1963) 222 Cal.App.2d 256, 260; see also Curland v. Los Angeles County Fair Ass’n (1953) 118 Cal.App.2d 691, 695–696 [“Whether [a] danger was obvious to plaintiff [is] a question of fact for the jury. [Citations.] Whether a person, under the circumstances, made a reasonable use of his faculties is also a question for the jury. The law presumes that a person possessing the normal faculties of sight must have seen that which was in the range of his sight”].)

The Court may, in appropriate circumstances, determine a condition is open and obvious where “photographs prima facie established the obviousness” of the condition. (Martinez, supra, 121 Cal.App.4th at p. 1184.) In examining photographs, the court should consider: (1) the photograph’s subject (i.e., its focal point); (2) the view of the subject (e.g., close-up, distant isolated, in context); (3) the photograph’s perspective (e.g., eye-level, overhead, ground-level); (4) the use of any plain-view altering devices (e.g., camera color filter, fish-eye lens, computer-manipulation); (5) the characteristics of the photograph (e.g., sharp and clear, blurry, grainy, color or black and white); (6) whether the photograph was taken under identical or substantially similar conditions (e.g., timing, lighting, weather); and (7) any other relevant circumstances (e.g., addition of extrinsic aids, such as a ruler or pointer). (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 24-25.) In Kasparian v. AvalonBay Communities, Inc., the plaintiff sued her landlord after she tripped and fell due to a recessed drain in the apartment complex. (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 14.) The California Court of Appeal reversed the trial court’s order granting summary judgment to the landlord, holding: “Summary judgment cannot be based on photographs where the reviewing court concludes either reasonable minds might differ regarding whether the photographs correctly depict the alleged defect and the surrounding environs or whether the photographs conclusively establish the defect was open and obvious. We find the photographs before the trial court in this case are not conclusive on this issue and thus triable issues remain, requiring a reversal of the summary judgment.” (Id. at p. 15.)

- Around 5:33 p.m., Mr. Huang put a yellow caution sign on the tile floor four or five feet away from the entrance of the restaurant while mopping the area next to the buffet. (UMF 2.)

- Mr. Huang placed the yellow warning sign to warn customers to be careful when they walked, as he was mopping the floor. (UMF 3.)

- Mr. Huang then moved the yellow caution sign so that the sign was closer to the entrance, and continued to mop the area to the left of the entrance doors. (UMF 4.)

- Plaintiff Joseph and Andrea Lomeli, his mother, walked into the restaurant a few minutes later. (UMF 5.)

- The yellow caution sign was out in the open when Plaintiff and Ms. Lomeli walked into the restaurant. (UMF 6.)

- The yellow caution sign continued to be out in the open while Plaintiff and Ms. Lomeli waited in line. (UMF 7.)

- Around 5:40 p.m., Mr. Huang moved the caution sign a little to his left and continued to mop the area in front of the restaurant’s doors. (UMF 8.)

- Video surveillance shows Plaintiff turning, while waiting in line, in the direction of Mr. Huang while he was mopping the area in front of the restaurant’s doors. (UMF 9.)

- Ms. Lomeli testified she saw someone mopping while she and Plaintiff were in the restaurant. (UMF 10.)

- Then, while Ms. Lomeli was waiting to check out at the service counter, Plaintiff ran towards the restaurant’s doors, slipped on the tile floor, and fell. (UMF 12.)

- Before falling inside the restaurant, Plaintiff had no knowledge of the floor being wet or slippery. Plaintiff had never even slipped on a slippery floor before and so, as a 10-year-old boy, he was not aware of this danger. At the time, his mind was focused on getting home safely. (PUMF 20.)

- Plaintiff fell at the only exit and entry doorway threshold of the restaurant. That is, the only means of ingress/ egress. The only way in or out. (PUMF 29.)

Additionally, Plaintiff disputes that the surveillance video shows that Plaintiff saw the sign or had knowledge of either the sign or the slippery floor, arguing that “Plaintiff’s attention is not definitively discerned from the video, though it seems apparent that his attention span is waning.” (PUMF 9.) Plaintiff has also submitted a declaration which states: “Before I left to get the change from the truck, I had no idea that the restaurant floor was wet or slippery, or what that actually meant. I didn’t see any signs about it….” (Renova Decl. ¶ 7.)

Here, the Defendant focuses on the obviousness of Mr. Huang mopping the floor. However, the condition at issue is the wet or slippery floor. That condition is transitory, in that at some point the wet floor becomes dry and is no longer slippery. Whether it was open and obvious that the floor in front of the only public exit door remained wet and slippery at the time of Plaintiff’s fall is a question of fact.[1] The video itself does not clearly depict whether the floor was wet or dry.

Moreover, whether the yellow warning sign was sufficient is also a question of fact. Here, the video evidence shows that while Mr. Huang initially placed the warning sign near the entrance/ exit door when Plaintiff and his mother came into the restaurant, he later moved the sign to the left of the door at the time of Plaintiff’s fall. A reasonable inference is that the area in front of the door is no longer wet or slippery.[2]

Defendant further argues that it was not its responsibility to supervise Plaintiff, and it was Plaintiff’s mother’s fault for failing to supervise the child properly. Defendant relies on cases finding a homeowner has no duty to supervise a child when the parent is supervising the child, in the context of liability based on negligent supervision. (Motion at pgs. 6-7.) Here, however, Plaintiff has not asserted a cause of action for negligent supervision. Rather, here, Defendant’s argument appears to be not one regarding duty, but that any breach is not the proximate cause of Plaintiff’s injury because Plaintiff’s mother’s failure to properly supervise was the cause of injury. (Motion at pg. 6 (“If a condition is open and obvious to a parent, or the parent has been warned, the parent’s failure to properly supervise their child is the proximate cause of a subsequent injury.”).) Defendant’s evidence consists solely of Lomeli’s deposition testimony that Plaintiff had never run in a restaurant before, that she had not advised Plaintiff not to run, and that she was not watching Plaintiff and did not see him until after he fell. (Lomeli Depo., 34:22-35:1, 34:16-21, 35:2-12.) The Court finds this evidence is insufficient to meet Defendant’s burden to show that there are no triable issues of material fact as to causation.

Because the Court “may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true,”[3] (Aguilar, supra, 25 Cal.4th at 840), the Court finds that Plaintiff has shown that there are triable issues of fact.

Therefore, Defendant Zheng Mao Huang dba Louisiana Fried Chicken and China Bowl’s motion for Summary Judgment is DENIED.

Defendant shall provide notice of the Court’s ruling and file proof of service of such.

[1] The cases cited by Defendant in the Supplemental Brief in Support of Defendant’s Motion for Summary Judgment involve an obviously wet condition, either because of rain or because of a hose or sprinklers. Therefore, a reasonable person could be expected to see and recognize that condition when using due care. Here, Plaintiff disputes that he saw the condition. More importantly, while a reasonable person (even a 10-year old boy) may be expected to see that someone is mopping the floor which makes it wet, whether a person could reasonably be expected to recognize that a particular portion of the floor remains wet or slippery depends on other factors such as how the floor looks and how much time has passed. The Court cannot make this determination as a matter of law simply by looking at the video evidence because the video does not establish the obviousness of the wet condition.

[2] Defendant cites to Melancon v. Popeye’s Famous Fried Chicken (La.Ct.App. 2011) 59 So.3d 513, 516, which holds that Popeye’s exercised reasonable care by placing two yellow warning signs near the counter and at the entrance. Here, however, the warning sign was moved as the mopping continued throughout the restaurant. Significantly, it was moved from the front of the door to the side of the door at the time Plaintiff slipped.

[3] Defendant argues in reply that “Plaintiff claims that he was too young to understand not to run across a floor while it is being mopped, but was old enough for his mother to ask him to go get change from the truck, was old enough for him to appreciate the ‘bad, bad, bad’ neighborhood they were in and wanting to protect his mother from ‘some guys.’” (Reply at pg. 2.) However, on summary judgment, the Court’s function is not to determine issues or the credibility of a witness. Rather, when the evidence is in conflict, it is up to the factfinder to determine at trial.

DEPARTMENT	32
HEARING DATE	November 9, 2023
CASE NUMBER	21STCV13692
MOTION	Motion for Summary Judgment or, in the Alternative, for Summary Adjudication
MOVING PARTY	Defendant Zheng Mao Huang dba Louisiana Fried Chicken and China Bowl
OPPOSING PARTY	Plaintiff Joseph Steward Renova, a minor by and through his Guardian Ad Litem, Andrea Stephanie Lomeli