Judge: Anne Hwang, Case: 21STCV15276, Date: 2023-08-23 Tentative Ruling

Case Number: 21STCV15276    Hearing Date: August 23, 2023    Dept: 32

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. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment
2. Memorandum of Points and Authorities
3. Separate Statement of Undisputed Material Facts and Supporting Evidence
4. Declaration of Robert W. Sweetin in Support of Motion for Summary Judgment
5. Declaration of Amine Klaeb in Support of Motion for Summary Judgment
6. Notice of Lodging Exhibits “B,” “C,” and“D” in Support of Motion for Summary Judgment

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment
2. Plaintiff’s Separate Statement in Support of Opposition
3. Declaration of Mark J. Giannamore in Support of Opposition to Motion for Summary Judgment
4. Compendium of Evidence in Support of Opposition to Motion for Summary Judgment.

REPLY PAPERS:

1. Reply Brief
2. Response to Plaintiff’s Separate Statement of Additional Undisputed Material Facts
3. Objections to Evidence Submitted by Plaintiff

BACKGROUND

Plaintiff Maria Belen Rojas (“Plaintiff”) sued Defendants Fuel For You, Inc., Boutros Family Trust, Maroun Boutros, Nada Boutros, Amine Klaeb, and Shell Oil Company (collectively, “Defendants”) for general negligence and premises liability based on a slip-and-fall that occurred on November 20, 2020 in a Shell Oil gas station store owned, controlled and operated by Defendants. Plaintiff alleges Defendants were negligent in the use or maintenance of the subject premises by allowing a dangerous condition to exist, thereby causing Plaintiff to slip and fall. (Complaint, p. 5.)

Defendants moves for summary judgment, or in the alternative, summary adjudication, on Plaintiff’s complaint. Plaintiff opposes the motion.

LEGAL STANDARD – SUMMARY JUDGMENT

“[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”].) 

EVIDENCE

The Court finds that Defendants did not comply with California Rules of Court, rule 3.1354. Therefore, the Court declines to rule on all the evidentiary objections for failure to comply with procedural requirements. (Cal. Rules of Court, rule 3.1354(b)-(c) [requirement of two separate documents, i.e., evidentiary objections and a proposed order on those objections]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1, 9 [trial court not required to give a second chance at filing properly formatted papers].) In any event, the subject portions were either not material to the Court’s disposition of the motion or contained improper legal opinion that does not have persuasive effect in a declaration. (Code Civ. Proc., § 437c, subd. (q).)

DISCUSSION

Legal Principles

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; Civ. Code, § 1714, subd. (a).)  Therefore, to prevail on a claim for premises liability, the 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 CACI No. 1000; Rowland v. Christian (1968) 69 Cal.2d 108.) 

A defendant may be negligent in the use or maintenance of the property if (1) a condition on the property created an unreasonable risk of harm; (2) the defendant knew or, through the exercise of reasonable care, should have known about it; and (3) the defendant failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition.  (CACI No. 1003.) 

“A plaintiff alleging injuries based on a dangerous condition must prove the defendant either: (1) created the dangerous condition, or (2) knew or should have known of the dangerous condition.  (See Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036; see also Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.)  If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for [visitors’] use or to give a warning adequate to enable them to avoid the harm.”  (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.)  The existence and scope of a property owner’s duty are legal questions for the court.  (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 36.)

            A property owner is not the insurer of the safety of its guests. (Ortega, supra, 26 Cal.4th at p 1205.)  The owner’s actual or constructive knowledge of the dangerous condition is key to establishing liability.  (Hall v. Rockcliff Realtors (2013) 215 Cal.App.4th 1134, 1139-40.)  Whether a defendant had constructive notice of the condition that created the risk of harm depends on whether, under all the circumstances, the condition was of such a nature and existed long enough that defendant had sufficient time to discover it and, using reasonable care: (1) repair the condition; or (2) protect against harm from the condition; or adequately warn of the condition.  A defendant must make reasonable inspections of the property to discover unsafe conditions.  If an inspection was not made within a reasonable time before the accident, this may show that the condition existed long enough so that the owner using reasonable care would have discovered it.  (CACI No. 1011.)  It is generally a question of fact for the jury as to whether, under all the circumstances, a defective condition existed long enough such that a reasonable person, exercising reasonable care, would have discovered it.  (Hale v. Safeway Stores, Inc. (1954) 129 Cal.App.2d 124, 128-129 (Hale).)

            In Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, 829 (Girvetz), the Court of Appeal stated:

The defendant market owner was not an insurer of the safety of his patrons, but owed them the duty to exercise reasonable care in keeping the premises safe for his invitees. To impose liability for injuries suffered by an invitee due to the defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it.  Whether, under all the circumstances, the defective condition had existed long enough so that a reasonable man exercising reasonable care would have discovered it, is ordinarily a question of fact to be decided by the jury. The fact alone that a dangerous condition existed at the time the accident occurred will not warrant an inference that the defendant was negligent. There must be some evidence, direct or circumstantial, to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it. 

And “[w]here the only evidence is that the foreign object has been on the floor of the market for a minute and a half, it must be held that it is insufficient to support an inference that the defendant proprietor failed to exercise the care required of him.”  (Id. at p. 831.)  On the other hand, where the evidence fails to show how long the dangerous condition existed prior to the injury, “evidence of the owner’s failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give the owner the opportunity to discover and remedy it. [Citation.]” (Ortega, supra, 26 Cal.4th at p. 1203; Sapp v. W.T. Grant Co. (1959) 172 Cal.App.2d 89, 91-92 (Sapp) [whether 15 to 25 minute interval between inspections was commensurate with the exercise of reasonable care was a question properly left to the trier of fact].)

            Application

Here, Defendants move for summary judgment on Plaintiff’s complaint for negligence and premises liability on the following grounds: (1) they did not have actual or constructive notice of the spill prior to Plaintiff’s injury; and (2) Plaintiff is unable to prove that a dangerous condition existed. In support of their motion for summary judgment, Defendants advance the surveillance footage of events near the time of Plaintiff’s fall. As shown by the surveillance footage, Plaintiff slipped near the refrigerator section of the Shell gas station located at 2322 E. Florence Ave in Huntington Park, CA 90255, where she sustained her injury. (UMF Nos. 2-3; see generally Compl.; Sweetin Decl., Exh. A, Rojas Depo at pp. 23:9-10, 26:25; Sweetin Decl., Exh. B at 11:00 a.m.) The surveillance footage also shows that two other customers walked by the same area without issue a minute or two prior to Plaintiff’s incident. (UMF No. 6; Sweetin Decl., Exh. B at 10:58 a.m.; Sweetin Decl., Exh. E PMK Depo at pg. 14:7-9.) Defendants further argue that Plaintiff lacks any direct evidence to show how the alleged substance came to be on the floor, and two employees examined the surrounding area after Plaintiff’s incident without finding anything to clean up. (UMF Nos. 6-9; Sweetin Decl., Exh. B at 10:58-11:01; PMK Depo at pg. 14:7-14.) In addition, Defendants advances the declaration of Amine Klaeb, a franchisee of Shell Oil Co. and owner of Fuel For You Inc, and he attests that the Defendants did not have any knowledge of the alleged dangerous condition and no employee or customer identified any potential hazards prior to Plaintiff’s fall. (UMF Nos. 13-14; Klaeb Decl. ¶¶ 3-4.)

As an initial matter, there is a triable issue of fact as to whether a dangerous condition existed. It is undisputed that Plaintiff testified that she saw water or oil on the floor after she slipped, and that she slipped on something like oil, not water. (See Motion at pg. 11.) Unlike in the Peralta case heavily relied upon by Defendants, here there is direct evidence of dangerous condition, not simply the possibility of a slippery substance. (Cf. Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035 (Plaintiff “unequivocally stated that she did not see anything on the floor prior to or after her fall.”).) Defendant’s evidence to the contrary consists of surveillance video,[1] other customers who do not slip, and employees who examine the area without subsequently cleaning up.  On summary judgment, the Court’s function is not to determine issues as a trier of fact or determine the credibility of witnesses. Rather, when the evidence is in conflict, it is up to the factfinder to determine at trial.

The Court further finds that Defendants have failed to meet their burden to show that there is no triable issue of fact that they did not have actual or constructive notice of the alleged dangerous condition that caused or contributed to Plaintiff’s injury. First, the proffered surveillance footage is of such short duration that it makes it difficult to determine the source or absence of the dangerous condition. Second, Defendants have failed to submit any evidence to show what the policy or procedure is at this gas station for inspections of the premises. Defendant Klaeb’s self-serving declaration that no employees or customers identified a potential hazard is insufficient. Thus, there is no evidence regarding how long the dangerous condition existed prior to the injury, or that Defendants inspected the premises within a reasonable period of time. It is therefore a question for the jury as to whether the dangerous condition existed long enough that a person exercising ordinary care would have discovered it. (See Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1211 (determining that a “defendant's failure to inspect the premises within a reasonable period of time prior to the accident is indicative of defendant's negligence and creates a reasonable inference that the dangerous condition existed long enough for it to be discovered by the owner.”).)

As Defendants have failed to establish that there are no triable issues of material fact, the motion for summary judgment is denied.

Next, Defendants move for summary adjudication as to Defendants Shell Oil Company, Boutros Family Trust, Maroun Boutros, Amine Klaeb and Nada Boutros on the ground that they lack ownership or control over the premises because it is solely owned by Defendant Fuel For You, Inc. The evidence submitted merely shows that Defendant Fuel For You, Inc. managed and controlled the premises. (See UMF Nos. 15-16; Klaeb Decl. ¶ 5; PMK Depo. 28:3-14.)  However, Defendants have failed to submit any evidence to show that these defendants lacked control over the subject premises.[2] (See Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162 (citations omitted).) (“A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.”))

Lastly, Defendants move for summary adjudication of Plaintiff’s second cause of action for negligence on the ground that it is duplicative of her first cause of action for premises liability. This is the sort of defect that, if it justifies any judicial intervention at all, is ordinarily dealt with most economically at trial, or on a dispositive motion such as summary judgment.” (Blickman Turkus, LP v. MF Downtown Sunnyvale, LLC (2008) 162 Cal.App.4th 858, 890.) However, in this instance, because Plaintiff’s causes of action are alleged against multiple defendants, it is conceivable that some may be liable under a general negligence theory, whereas others would be liable under a claim for premises liability. Therefore, summary adjudication is inappropriate under the circumstances.

CONCLUSION AND ORDER

            Based on the foregoing, Defendants’ Motion for Summary Judgment is DENIED. The Court further DENIES Defendants’ alternative Motion for Summary Adjudication in its entirety.

Defendants shall provide notice of this ruling and file a proof of service of such.