Judge: Anne Hwang, Case: 21STCV39636, Date: 2024-01-22 Tentative Ruling

Case Number: 21STCV39636    Hearing Date: January 22, 2024    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; Memorandum of Points and Authorities; Declaration of Amy W. Lewis

2.      Separate Statement of Undisputed Facts

3.      Declaration of Tom Lapatka in Support

OPPOSITION PAPERS

1.      Plaintiff’s Opposition to Motion for Summary Judgment

2.      Plaintiff’s Separate Statement in Opposition

3.      Plaintiff’s Evidentiary Objections in Opposition

4.      Plaintiff’s Separately Bound Evidence in Opposition

REPLY PAPERS

1.      Defendant’s Reply to Plaintiff’s Opposition

2.      Defendant’s Response to Plaintiff’s Additional Facts in Dispute

BACKGROUND

            On October 27, 2021, Plaintiff Ina Rae Ruan (“Plaintiff”) filed a complaint against Defendants The Vons Companies, Inc., Safeway Inc., Gregory Moore, and Does 1 to 50, asserting one cause of action for premises liability.

            The Complaint alleges the following. On November 1, 2019, Plaintiff was operating an electric scooter at a Vons grocery store in Monrovia, California, when “an unsafe and protruding object struck her.” (Complaint, 4.)

Defendant The Vons Companies, Inc. (“Defendant”) now moves for summary judgment. Defendant argues the following: (1) Defendant did not breach a duty; (2) Defendant did not cause Plaintiff’s injury; and (3) the alleged condition was not dangerous.  

EVIDENTIARY OBJECTIONS

            The Court declines to rule on Plaintiff’s evidentiary objection as it has no effect on the ruling herein.

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”].)

ANALYSIS

“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).)

“‘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.)

Here, Defendant sets forth the following facts:

-          Plaintiff, a then 77-year-old female customer claims that she was operating an electric scooter at Vons #2200, located at 130 W. Foothill Blvd., Monrovia, CA 91016 on November 1, 2019, at approximately 2:00 p.m. (UMF 1.)

-          Plaintiff claims that while she was in the cheese aisle, she was distracted by some young children in the aisle taunting her. (UMF 2.)

-          Plaintiff drove the electric scooter into a stationary metal basket attached to a refrigeration unit. (UMF 3.)

-          Plaintiff claims that her contact with the stationary metal basket caused a deep wound to her right calf. (UMF 4.)

-          Plaintiff admits that she saw no one else in the aisle, other than the children, at the time of the incident. (UMF 7.)

-          Plaintiff admitted that there was nothing wrong with the metal basket attached to the refrigeration unit. (UMF 8.)

-          Plaintiff did not observe the metal basket prior to the incident. (UMF 9.)

-          Plaintiff admitted to having observed metal baskets in the store prior to the date of the incident. (UMF 10.)

-          Tom LaPatka was employed as the store director at Vons #2200 on November 1, 2019. (UMF 11.)

-          Mr. LaPatka confirmed that while he was the store director at sore #2200, he did not observe or become aware of any incident wherein a customer was injured by a display basket attached to the refrigerator in the cheese and deli aisle other than in the incident involving plaintiff. (UMF 12.)

-          Mr. LaPatka confirmed that on November 1, 2019, the Vons #2200 located at 130 W. Foothill Blvd. in Monrovia, California, had bright orange metal baskets attached to its refrigeration unit in the refrigerated aisle. (UMF 14.)

Plaintiff sets forth the following facts:

-          While operating a motorized scooter/ shopping cart on the premises of Defendant’s store, Plaintiff suffered a deep laceration on her leg from a sharp metal basket that protruded into the aisle. … As she was moving through the aisle and attempting to avoid colliding with the children, [Plaintiff’s] leg became caught on a black hanging metal basket that was protruding into the aisle. (PAMF 1.)

-          Seeing that her leg was bleeding profusely from a deep cut, she tried to clean herself up with tissues and went the pharmacy and requested help. (PAMF 2.)

-          She reported the incident to an employee of Defendant’s, pharmacist Giancarlo Perez, who administered first aid and viewed the wound. Mr. Perez saw that the wound was two to three inches long and “a piece of her skin was torn [and] was hanging off. It was pretty deep and there was a lot of blood coming out.” (PAMF 3.)

-          Plaintiff’s injuries were of the sort that would be caused by a sharp object. (PAMF 5.)

-          Plaintiff testified that the basket that caused her injuries was black. (PAMF 6.)

-          No video of the incident was preserved, no photographs were taken of the instrument of injury, no witness statements were taken, and no report was created. (PAMF 8.)

-          Defendant failed to inspect the basket that caused Plaintiff’s injuries until after the lawsuit had been filed. (PAMF 10.)

-          Lapatka cannot testify as to the condition of the basket that caused Plaintiff’s injuries and does not know whether it was sharp or dull, and specifically admitted that he does not know if it was in a safe condition on the date of the incident. (PAMF 14.)

-          Defendant attached photographs of a hanging basket that was allegedly similar to the one that caused Plaintiff’s injuries. However, despite the fact that these photographs were attached to his own declaration, Lapatka did not know (a) when the photographs were taken or who took them; (b) whether the basket depicted was even of the same type as that that caused Plaintiff’s injuries; or (c) whether the basket that caused Plaintiff’s injuries was sharp. (PAMF 15.)

-          Lapatka admitted that he had personally noticed that the edges of the basket wires that were placed throughout the store could become sharp over time, and could not state whether this had occurred in this case. (PAMF 16.)

As an initial matter, the parties dispute what constitutes the alleged dangerous condition. Defendant characterizes the condition as a metal basket. (UMF 3.) Plaintiff characterizes it as a basket that was sharp. (PAMF 5.) Plaintiff has presented evidence that the edges of the basket wires can become sharp over time. (PAMF 16.) Neither party produces photographs of the condition of the actual basket. The photographs produced by Defendant depict the type of basket that existed in November 2019.[1] (Lapatka Depo. 28:13-29:4.)

Although neither party has evidence regarding the condition of the basket at the time of the incident, a jury could reasonably find that there was a sharp edge given the nature of the injury, which has been described as a two-inch laceration, that was “pretty deep” with a lot of blood.[2] (PAMF 3.) In any event, there is a triable issue of fact regarding the condition of the basket. For this reason, the Court cannot conclude that the condition was open and obvious.

Moreover, because there remains a triable issue of fact regarding the condition of the basket, the Court cannot conclude as a matter of law that the condition of the basket did not cause the injury, or that Defendant did not breach a duty. (Motion at pp. 6-7.)

Accordingly, and considering the evidence and all reasonable inferences in favor of Plaintiff, triable issues of fact remain.

CONCLUSION AND ORDER

Therefore, Defendant The Vons Companies, Inc.’s motion for Summary Judgment is DENIED.

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