Judge: Audra Mori, Case: 20STCV29530, Date: 2023-01-05 Tentative Ruling

Case Number: 20STCV29530    Hearing Date: January 5, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. Background

Plaintiff filed this action against defendants R. Berg Enterprises, Inc. (“Berg”), erroneously sued as 7-Eleven, Manager Harry, and Does 1 to 50 for injuries relating to Plaintiff’s trip and fall on defendants’ premises.  On August 20, 2020, Plaintiff filed an amendment to complaint naming SEV EL WIL, LLC (“SEV EL WIL”) as Doe 2.  On December 11, 2020, Plaintiff filed a request for dismissal dismissing Manager Harry only. 

The complaint alleges that as Plaintiff was walking out of a 7-Eleven store, she tripped over a cement barrier and fell.  (Compl. at p. 5.)  Plaintiff alleges that defendants negligently owned, operated maintained and/or managed the parking lot and barriers at the premises.  (Ibid.)  The complaint asserts causes of action for negligence and premises liability against defendants. 

At this time, each Berg and SEV EL WIL move for summary judgment as to Plaintiff’s complaint.  Any opposition to each party’s motion was due or before December 22, 2022.  No opposition to either motion for summary judgment as been received. 

Additionally, Berg and SEV EL WIL move for terminating sanctions against Plaintiff dismissing Plaintiff’s complaint for her failure to comply with the Court’s September 7 and 8, 2022 orders compelling Plaintiff to serve verified responses to SEV EL WIL’s form interrogatories, set one, special interrogatories, set one, and request for production of documents (“RPDs”), set one, on Plaintiff Betty Campbell (“Plaintiff”), and to pay sanctions totaling $1,440.00.  The motion is unopposed. 

The Court will first address the motion for terminating sanctions. 

2. Motion for Terminating Sanctions

Code of Civil Procedure § 2023.030 gives the court the discretion to impose sanctions against anyone engaging in a misuse of the discovery process.  A court may impose terminating sanctions by striking pleadings of the party engaged in misuse of discovery or entering default judgment.  (Code Civ. Proc., § 2023.030(d).)  A violation of a discovery order is sufficient for the imposition of terminating sanctions.  (Collison & Kaplan v. Hartunian (1994) 21 Cal.App.4th 1611, 1620.)  Terminating sanctions are appropriate when a party persists in disobeying the court's orders.  (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 795-796.) 

A terminating sanction is a "drastic measure which should be employed with caution."  (Deyo, 84 Cal.App.3d at 793.)  "A decision to order terminating sanctions should not be made lightly. But where a violation is willful, preceded by a history of abuse, and the evidence shows that less severe sanctions would not produce compliance with the discovery rules, the trial court is justified in imposing the ultimate sanction."  (Mileikowsky v. Tenet Healthsystem (2005) 128 Cal.App.4th 262, 279-280.)  While the court has discretion to impose terminating sanctions, these sanctions "should be appropriate to the dereliction and should not exceed that which is required to protect the interests of the party entitled to but denied discovery."  (Deyo, 84 Cal.App.3d at 793.)  "[A] court is empowered to apply the ultimate sanction against a litigant who persists in the outright refusal to comply with his discovery obligations."  (Ibid.)  Discovery sanctions are not to be imposed for punishment, but instead are used to encourage fair disclosure of discovery to prevent unfairness resulting for the lack of information.  (See Midwife v. Bernal (1988) 203 Cal.App.3d 57, 64 [superseded on other grounds as stated in Kohan v. Cohan (1991) 229 Cal.App.3d 967, 971].)

In this case, SEV EL WIL’s motions to compel responses to form interrogatories, special interrogatories, and RPDs were granted on September 7 and 8, 2022.[1]  Plaintiff was ordered to serve verified responses to the discovery requests within 10 days of each order.  Further, Plaintiff was ordered to pay monetary sanctions of $720 in each of the September 7 and 8, 2022 orders, for a total of $1,440.00, to SEV EL WIL within 20 days.  SEV EL WIL served notice of the orders on Plaintiff on September 13, 2022.  (Mot. Exh. 1.)  On October 15, 2022, Berg and SEV EL WIL sent written correspondence to Plaintiff regarding the subject discovery.  To date, Plaintiff has not complied with the September 7 and 8, 2022 orders by serving responses or paying the monetary sanctions.

Berg’s and SEV EL WIL’s evidence shows that Plaintiff failed to comply with SEV EL WIL’s discovery requests, and Plaintiff failed to comply with the Court’s September 7 and 8, 2022 orders.  Accordingly, lesser sanctions have not been ineffective in getting Plaintiff to comply with her discovery obligations.  Moreover, a brief review of the prior motions reveals that the discovery at issue goes to the crux of Plaintiff’s claim, and therefore an issue or evidentiary sanction would be tantamount to a terminating sanction.  Furthermore, Plaintiff does not oppose this motion and appears to have abandoned the case. 

However, to the extent that Berg and SEV EL WIL request that terminating sanctions be imposed dismissing the complaint against Berg, moving Defendants fail to show that Plaintiff failed to comply with any orders concerning discovery requests served on Plaintiff by Berg.  Rather, the evidence shows that the September 7 and 8, 2022 orders pertained to SEV EL WIL’s discovery requests and motions to compel only. 

Based on the foregoing, Berg’s and SEV EL WIL’s motion terminating sanctions is granted in part.  The motion is granted as to SEV EL WIL only.  Plaintiff’s action against SEV EL WIL is hereby dismissed.  No monetary sanctions are requested with the motion, and none are awarded. 

            In light of this ruling dismissing Plaintiff’s action against SEV EL WIL, SEV EL WIL’s motion for summary judgment is taken off calendar as moot. 

            The Court will now address Berg’s motion for summary judgment. 

3. Motion for Summary Judgment

a. Moving Argument

Berg argues it is entitled to summary judgment because it did not create the alleged dangerous condition, and it was not responsible for maintenance and repairs to the area of the parking lot of the shopping center where the incident occurred.  Berg contends it was not responsible for the portion of the parking lot where the incident occurred, and that it did not install the parking barrier at issue in this action.  Berg argues that Plaintiff has no evidence that Berg was negligent in connection with the incident. 

b. Burdens on Summary Judgment

Summary judgment is proper “if all the papers submitted 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.”  (Code Civ. Proc. §437c(c).)  The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action.  (Id. at §437c(p).)  A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….”  (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.)  Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.)  In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

(Leyva v. Garcia (2018) 20 Cal.App.5^th 1095, 1103.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action.  (Id. at §437c(p)(2).)  On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion.  (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

c. Analysis

The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages.  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)  Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.  (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)  To determine the existence and scope of duty, courts consider the foreseeability of harm to the plaintiff, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the extent of the burden to the defendant of imposing a duty to exercise care with resulting liability for breach.  (Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

“A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control.  Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper.  [Citation.]”  (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.)  There are exceptions to this general rule where a person has voluntarily assumed a duty to act, either by contract or by his or her actions (Interinsurance Exchange of the Automobile Club of Southern California (2002) 161 Cal.App.3d 571, 575), or where a person creates the danger that causes the harm or increases a foreseeable risk of harm.  (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1081).

Here, Plaintiff alleges that on August 7, 2018, she was walking out of a 7-Eleven store when she tripped over a cement barrier in the parking lot and fell.  (Mot. Undisputed Material Facts (“UMF”) 1.)  Berg is the franchisee of the 7-Eleven store in the subject shopping center where the cement barrier, which Berg also refers to as a wheel stop, is located.  (Mot. UMF 3.)  SEV EL WIL is the owner of the shopping center and parking lot where the alleged incident occurred.  (Mot. UMF 5.)  Berg has no ownership interest in the parking lot.  (Ibid.)  Pursuant to the terms of the operative lease- entered into by 7-Eleven, Inc. Employees’ Trust as the landlord and 7-Eleven, Inc. as the tenant- the lessee is responsible for the maintenance and repairs of the relevant portion of the parking lot in front of the subject 7-Eleven store.[2]  (Mot. UMF 8.)  Nothing in the lease indicates that Berg as the sublessee is responsible for the maintenance or repair of the parking lot directly in front of the 7-Elven store.[3]  (Ibid.)  Berg did not design the layout of the parking lot and was not involved in the decision making process regarding the placement of the cement barriers or wheel stops in the parking lot.  (Mot. UMF 9.)  Further, Berg did not install any of the cement barriers in front of the subject 7-Eleven store, and no person that Plaintiff alleges caused or created the alleged incident was an employee of Berg.  (Mot. UMF 10-11.) 

Additionally, in connection with SEV EL WIL’s request for admissions, set one, served on Plaintiff, Plaintiff admitted that any injury Plaintiff received as a result of the incident was not the result of any negligence by Berg or Berg’s employee, Harbans Lal, who was sued as Manager Harry before being dismissed by Plaintiff.  (Mot. UMF 4, 13-14.)  Plaintiff further admitted that no person she alleges caused the incident was an employee of Berg’s.[4]  (Mot. Exh. 6 No. 21.) 

The foregoing is sufficient to meet Berg’s moving burden to show it is entitled to judgment on the negligence and premises liability claims.  (See Isaacs, 38 Cal.3d at 134.)  Because Plaintiff does not oppose the motion, Plaintiff necessarily fails to meet the shifted burden. 

d. Conclusion  

Defendant Berg’s motion for summary judgment is granted.

Moving Defendants are ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 5^th day of January 2023