Judge Ashfaq G. Chowdhury, Case Number: 23GDCV01773, Date: 2025-06-05 Tentative Ruling

Judge: Ashfaq G. Chowdhury, Case: 23GDCV01773, Date: 2025-06-05 Tentative Ruling

Case Number: 23GDCV01773 Hearing Date: June 5, 2025 Dept: E

Hearing Date: 06/05/2025 – 8:30am
Case No. 23GDCV01773
Trial Date: 11/03/2025
Case Name: WENDY S. MOGUL, an individual; v. GOODWILL INDUSTRIES OF SOUTHERN CALIFORNIA, a Corporation; and DOES 1 to 50

TENTATIVE RULING ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

RELIEF REQUESTED¿

“Defendant GOODWILL INDUSTRIES OF SOUTHERN CALIFORNIA (“Goodwill”) will and hereby does move the Court under Code of Civil Procedure section 437c for an order granting summary judgment on the Complaint by Plaintiff, Wendy S. Mogul.

This motion is supported by the Declaration of Nidia Lopez, indicating that Goodwill had no notice of any dangerous condition with respect to objects on shelves that might suddenly fall off without explanation. Goodwill also meets its initial burden under section 437c(p)(2) by referencing Plaintiff’s evasive responses to written discovery. Further, Plaintiff has not identified the specific dangerous condition at issue that evidently caused a lamp to fall on her head, and she will be unable to meet her burden in opposition to this motion. Thus, Plaintiff cannot establish one or more elements of her causes of action for Negligence and Premises Liability. (See Code Civ. Proc., § 437c(p)(2).)

This motion is further based on the attached Memorandum of Points and Authorities, on the Separate Statement of Undisputed Material Facts, on the Evidence in Support, on Plaintiffs’ Opposition and accompanying documents, on the Reply, if any, and on all matter properly before the Court at the time of the hearing.”

(Def. Mot. p. 1-2.)

PRELIMINARY

Moving Party: Defendant, Goodwill Industries of Southern California (Defendant or Goodwill)

Responding Party: Plaintiff, Wendy Mogul

Moving Papers: Notice/Motion; Separate Statement; Evidence; Proposed Order

Opposing Papers: Opposition; Separate Statement; Burunsuzyan Declaration;

Reply Papers: Reply

BACKGROUND

Plaintiff, Wendy S. Mogul, filed the instant action on 8/22/2023 against Defendant, Goodwill Industries of Southern California.

Plaintiff’s Complaint alleges two causes of action – (1) General Negligence and (2) Premises Liability.

Plaintiff alleges that on September 27, 2021, she was shopping at Goodwill when a light fixture suddenly fell on her head while she was walking in the store aisle.

PROCEDURAL ANALYSIS

Under CCP § 437c(a)(2):

Notice of the motion and supporting papers shall be served on all other parties to the action at least 81 days before the time appointed for hearing. If the notice is served by mail, the required 81-day period of notice shall be increased by 5 days if the place of address is within the State of California, 10 days if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 81-day period of notice shall be increased by two court days.

(CCP § 437c(a)(2).)

Here, Defendant’s motion is timely.

The motion shall be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise. The filing of the motion shall not extend the time within which a party must otherwise file a responsive pleading. (CCP § 437c(a)(3).)

Here, Defendant’s motion is timely.

LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil Procedure section 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (CCP § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto. (CCP § 437c(p)(2).) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

“Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto. The plaintiff or cross-complainant shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (CCP §437c(p)(2).)

To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits of the defendant’s showing. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.)

ANALYSIS

Defendant, Goodwill, argues that Plaintiff cannot establish her negligence/premises liability causes of action because: (1) Goodwill did not have notice of any dangerous condition with respect to objects on shelves that might suddenly fall off without explanation and (2) Plaintiff has not identified the specific dangerous condition at issue that evidently caused a lamp to fall on her head.

The elements of a cause of action for premises liability are the same as those for negligence. (Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207 citing Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998) Accordingly, the plaintiff must prove a legal duty to use due care, a breach of such legal duty, and the breach as the proximate or legal cause of the resulting injury. (Jones v. Awad, supra, 39 Cal.App.5th at 1207 citing Beacon Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, 573.)

Defendant argues that Plaintiff’s negligence and premises liability claims fail because Goodwill did not have notice of any dangerous condition on its premise. Defendant also argues that Plaintiff cannot meet her burden in presenting evidence that Goodwill caused her injuries based on Plaintiff’s response to Special Interrogatories.

Notice

Because the owner is not the insurer of the visitor’s personal safety, the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.)

Defendant argues that it cannot be liable for negligence/premises liability because it did not have notice of any dangerous condition on its premises.

To support its argument that it did not have actual or constructive notice, Goodwill relies on the declaration of Nidia Lopez, a manager at the Goodwill where the alleged incident occurred.

In relevant part, Lopez declares:

2. I have worked at Goodwill Industries since approximately 2017, and after three years as an associate was promoted to manager in late 2020. At the time of this incident, September 28, 2021, I was working as one of two managers at the store. We usually have 3-4 associates assigned per shift, in addition to two floor managers. It is the custom and practice for all managers and associates in the store, when they are not checking out a customer or restocking shelves, to continually survey the store and keep it clean.

3. Goodwill Industries generally does not sell any products containing liquids, so spills are rare. We therefore do not keep any record of checking each aisle. It is our custom and practice to continually identify and address any safety issues as they arise. We do not keep any record of this kind of regular maintenance, unless there is an incident or some other need.

4. On the date of this incident, September 28, 2021, at approximately 2:40 p.m., there was an incident which Ms. Wendy Mogul reported that she was injured by one or more falling objects from a shelf. As a manager on duty, I responded immediately and checked to see if she was all right. We offered to call and ambulance for her, but she refused. She did allow us to provide a pack of ice, which she applied to her head.

5. Attached as Exhibit A are true and correct copies of photographs taken shortly after the incident, depicting the aisle where Ms. Mogul experienced this event and showing the objects which she stated fell on her head. As seen in the photograph, the objects remaining on the shelves are accessible but generally do not lean out into the aisle. With the shelves generally having this same appearance before this incident, there would have been no indication that any object would somehow suddenly fall on Ms. Mogul or any other customer.

6. On the date of the incident, September 28, 2021, and in the hours before it occurred, neither I nor any of the other associates or the other manager on duty reported noticing any issues with the shelving or with any objects placed on the shelves. Based on our custom and practice of checking the aisles, and based on the photographs generally depicting the general state of the shelves around the time of the incident, neither I nor anyone working at Goodwill on the date in question had any prior notice that there was a potentially dangerous situation involving a lamp or other object that would somehow fall onto Ms. Mogul or any other customer.

(Lopez Decl. ¶¶ 2-6.)

In Opposition, Plaintiff argues that Goodwill failed to inspect, discover, and remedy the unsafe condition.

Plaintiff points to Exhibit A to the Lopez declaration that Defendant submitted.

Plaintiff argues that the picture shows a thick yellow cord hanging over the edge of the top shelf. Plaintiff argues that this creates a reasonable inference that the base of the lamp which fell and struck Plaintiff was not resting securely on the display shelf.

Plaintiff also argues there is a dispute as to whether Defendant had constructive notice by submitting the deposition transcript of Goodwill’s Senior Director of Risk Management and Ambassador of Safety, Jillian Soto, taken on December 9, 2024. [The relevant portions of the Soto transcript are attached as Exhibit 3 to the declaration of Plaintiff’s counsel, Maro Burunsuzyan.]

In relevant part of the Soto deposition transcript:

Q. Can you identify any one person who was doing inspections on the aisles on the date of my client's incident?

A. You would have to ask that team.

(Decl. Burunsuzyan, Ex. 3, Soto Dep. Transc. p.83.)

Q. You also don't know if any specific individual on behalf of Goodwill inspected the aisle where the lamp and the jewelry holder was shelved 30 minutes before the incident; correct?

A. Correct.

Q. You don't know if that aisle was inspected one hour before the incident; correct?

A. Correct.

Q. You don't know if that aisle was inspected by anyone from the moment that store opened until the incident happened with my client; correct?

A. You would need to ask store staff.

Q. Do you know yourself?

A.· No.

(Decl. Burunsuzyan, Ex. 3, Soto Dep. Transc. p. 129.)

Q. Does the standard operating procedure book, the general book that's several hundreds of pages, have anything to do or to say about store inspections?

A. Yes.

Q. Is there a requirement that inspections be documented?

A. No.

Q. Has there ever been a requirement that inspections be documented?

A. No. We have -- we have many inspections. We have a monthly safety checklist inspection, that means in writing. We also have a third party come out and inspect our sites that have participants at that those locations for safety inspections. Those are documented.

(Decl. Burunsuzyan, Ex. 3, Soto Dep. Transc. p.114-115.)

Here, Plaintiff has demonstrated that there is a genuine dispute to a triable issue of fact as to whether Defendant had actual or constructive notice of the dangerous condition.

As explained in Ortega:

[P]laintiffs may demonstrate the storekeeper had constructive notice of the dangerous condition if they can show that the site had not been inspected within a reasonable period of time so that a person exercising due care would have discovered and corrected the hazard. (Bridgman, supra, 53 Cal.2d at p. 447.) In other words, if the plaintiffs can show an inspection was not made *1213 within a particular period of time prior to an accident, they may raise an inference the condition did exist long enough for the owner to have discovered it. (Ibid.) It remains a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care.

(Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1212-13.)

In relevant part, Lopez stated that “neither I nor anyone working at Goodwill on the date in question had any prior notice that there was a potentially dangerous situation involving a lamp or other object that would somehow fall onto Ms. Mogul or any other customer.” (Lopez Decl. ¶ 6.)

Lopez also stated, “It is the custom and practice for all managers and associates in the store, when they are not checking out a customer or restocking shelves, to continually survey the store and keep it clean.” (Lopez Decl. ¶ 2.)

However, the Lopez declaration also admits that “Goodwill Industries generally does not sell any products containing liquids, so spills are rare. We therefore do not keep any record of checking each aisle. It is our custom and practice to continually identify and address any safety issues as they arise. We do not keep any record of this kind of regular maintenance, unless there is an incident or some other need.” (Lopez Decl. ¶ 3.)

Although the Lopez declaration claims that neither Lopez nor anyone working at Goodwill on the date in question had any prior notice, the Lopez declaration concedes that Goodwill does not keep any record of checking each aisle.

Further, in the Soto [Goodwill’s Senior Director or Risk Management and Ambassador of Safety] deposition transcript, Soto admitted that she did not know if any specific individual inspected the aisle where the lamp was shelved 30 minutes before the incident. (Decl. Burunsuzyan, Ex. 3, Soto Dep. Transc. p. 129.) Further, Soto did not know if the aisle was inspected an hour before the incident. (Id.)

Therefore, in light of Goodwill’s lack of record keeping and lack of knowledge about whether or not a specific individual inspected the aisle, Plaintiff raised a triable issue of fact as to whether or not Goodwill had constructive notice of the dangerous condition.

“We conclude that a plaintiff may prove a dangerous condition existed for an unreasonable time with circumstantial evidence, and that, as Bridgman observed, “evidence that an inspection had not been made within a particular period of time prior to an accident may warrant an inference that the defective condition existed long enough so that a person exercising reasonable care would have discovered it.”” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1210 quoting Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 447.)

Causation

Defendant also argues that Plaintiff cannot demonstrate that Goodwill caused her injuries, and that Plaintiff has not identified the dangerous condition.

Defendant cites to Plaintiff’s response to special interrogatories.

In relevant part, SROG 4 asked, “State with specificity any and all facts YOU rely upon in YOUR contention that Defendant GOODWILL INDUSTRIES OF SOUTHERN CALIFORNIA caused or contributed to the INCIDENT.” (Def. Evid. in Support, Ex. 3, SROG 4.)

Although Plaintiff objected in part to SROG 4, Plaintiff also responded with, “While Ms. Mogul was at the Goodwill store shopping with a cart, a metal lamp and possibly a second item, both on top shelf, fell on her head causing severe injuries and damages.” (Def. Evid. in Support, Ex. 3, SROG 4.)

Defendant’s argument that Plaintiff cannot demonstrate causation, or that Plaintiff did not identify the dangerous condition, makes little to no sense to the Court.

Plaintiff’s response to SROG 4, which Defendant itself submitted as evidence, identifies the dangerous condition, and it explains Plaintiff’s theory of causation.

It is well established that “the existence and scope of a duty are questions of law, while breach, causation, and injury are fact-specific issues for the trier of fact.” (Achay v. Huntington Beach Union High School Dist. (2022) 80 Cal.App.5th 528, 535 quoting Staats v. Vintner’s Golf Club, LLC (2018) 25 Cal.App.5th 826, 837.)

TENTATIVE RULING

Defendant’s motion for summary judgment is DENIED. Plaintiff demonstrated that there is a triable issue of fact as to whether or not Goodwill had actual or constructive notice of the dangerous condition. The Jillian Soto deposition transcript submitted by Plaintiff, along with Lopez Declaration submitted by Defendant, showed there is a triable issue of fact as to whether Goodwill had actual or constructive notice of the dangerous condition because that evidence demonstrated there is a dispute as to whether an inspection was, or was not, made within a particular period of time prior to the accident.

As explained in Ortega:

(Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1212-13.)

Further, Defendant’s motion argued that Plaintiff has the burden of showing that there was in fact a dangerous condition on the premises and that Plaintiff cannot meet this burden. Here, Defendant’s argument seems nonsensical. Defendant’s own separate statement admitted, “While Wendy Mogul was walking through an aisle in the afternoon, a lamp (and possibly an additional object) fell on her head.” (Def. Sep. Stmt. #4.)

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