Judge: Cherol J. Nellon, Case: 21STCV43650, Date: 2023-04-05 Tentative Ruling

Case Number: 21STCV43650    Hearing Date: April 5, 2023    Dept: 28

Defendant SCI California Funeral Services, Inc.’s Motion for Summary Judgment

Having considered the moving and opposing papers, the Court rules as follows. 

BACKGROUND

On November 30, 2021, Plaintiff Rosa Maria Pacheco (“Plaintiff”) filed this action against Defendant SCI California Funeral Services, Inc. (“Defendant”) for general negligence and premises liability.

On January 10, 2022, Defendant filed an answer.

On January 18, 2023, Defendant filed a Motion for Summary Judgment to be heard on April 5, 2023. On March 20, 2023, Plaintiff filed an opposition.

Trial is currently scheduled for September 26, 2023.

PARTY’S REQUESTS

Defendant requests the Court grant summary judgment on the basis there is no triable issue of material fact.

Plaintiff requests the Court deny the motion.

OBJECTIONS

Plaintiff’s Objections:
Sustained: 3,

Overruled: 1, 2, 4-18, 1-7 (second set)

LEGAL STANDARD

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.) CCP § 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) 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 has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

“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, 1159.)

Whether a commercial landlord had possession and control over commercial property to subject the landlord to liability is a question of law for the court to decide. (Kentucky Fried Chicken of Calif., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.) “A landlord has relinquished possessory interest in the land, his or her duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control.” (Garcia v. Holt (2015) 242 Cal.App.4th 600, 604.) “[W]here a landlord has relinquished control of property to a tenant, a ‘bright line’ rule has developed to moderate the landlord’s duty of care owed to a third party injured on the property as compared with the tenant who enjoys possession and control.” (Salinas v. Martin (2008) 166 Cal.App.4th 404, 412.) This bright line rule holds a landlord liable to third parties in a premises liability action only if: (1) the landlord has actual knowledge of the hazard; and (2) the right and ability to remedy it. (Id.)

A land possessor does not have a duty to warn an invitee of obvious dangers but does have a duty to warn about dangerous conditions known to the possessor and those that might have been found by exercise of ordinary care. (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27.) Obvious dangerous are those that which that an invitee will perceive “that which would be obvious to him through the ordinary use of his senses.” Id. A land possessor is not liable for damages caused “by a minor, trivial, or insignificant defect in property.” (Caloroso v. Hathaway (2004) 122 Cal. App. 4th 922, 927.)

According to Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261, 267-268, when determining if a risk if trivial, courts look to a multitude of factors beyond just depth or height of a sidewalk fault. For example, courts may look towards physical characteristics (such as exposed rebar or broken pieces), visibility, and history (such as whether anyone else has been injured). 

A customer injured by a dangerous condition on a premises owners' property can only recover damages against the owner of a premises if the owner was somehow negligent. (Louie v. Hagstrom's Food Stores, Inc. (1947) 81 Cal.App.2d 601.) A premises owner's negligence may be proven by showing that the owner did not “exercise reasonable care to keep the premises reasonably safe for patrons” (Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035), either because (1) the owner itself created a dangerous condition on the premises (Henderson v. Progressive Optical System (1943) 57 Cal.App.2d 180, 184), or (2) someone else created a dangerous condition, and the owner acted unreasonably by not remedying that condition or warning its customers about it (Girvetz v. Boys' Market (1949) 91 Cal.App.2d 827, 829) “Absent any evidence that there was a … dangerous condition created by or known to [defendant], [plaintiffs] cannot sustain their burden of proof” so as to defeat a defendant’s motion for summary judgment. (Peralta v. The Vons Companies, Inc., (2018) 24 Cal.App.5th 1030, 1036.) A store owner must have actual or constructive notice of the condition to be negligent; it cannot have merely existed. (Id.)

DISCUSSION

Plaintiff alleges that while visiting the subject location, she walked on a grave. The grave then subsided 18 inches, causing Plaintiff to fall and injure herself. The weather at the time of the incident was sunny, clear and dry. (UMF 1.) The specific grave was dug and backfilled in 1987. (UMF 5.)

For a premises owner to be liable for injuries suffered due to a dangerous condition on the premises, the premises owner either must have actual or constructive knowledge of the dangerous condition. Generally, this means either the condition existed long enough that the owner should have discovered it, or that the owner was informed of the dangerous condition. Defendant had no actual notice of the subject condition. The grave had remained in the same condition for 33 years; there were no prior incidents with the grave. (UMF 5.) The cemetery lawn is constantly maintained as a feature of the cemetery, and thus there is no way for Defendant to see any imperfections in the soil underneath unless there are prior incidents indicating as such. Plaintiff herself testified she did not notice any depression, subsidence or ground instability around the area prior to her fall, despite having visited the grave approximately 25 time previously. (UMF 1-2.) The evidence supports that Defendant was not on actual notice as to the subject condition.

Defendant also argues it had no constructive notice. As previously mentioned, there were no previous incidents that would put Defendant on notice as to any potential risk associated with the grave; there also were no prior incidents of someone falling due to any subsiding grave. (UMF 6.) The grave itself complied with state requirements. Defendant’s employees and third-party contractors conduct daily visual inspections of the cemetery lawns and adjacent walkways for potential safety hazards, which is reasonable given there are approximately 80 acres of land to inspect; this includes a daily inspection of flower vase holes, effectively requiring a visual inspection of every grave. (UMF 4.) On the rare occurrence a grave subsides, employees are instructed and trained to immediately place warning cones around the grave and take necessary steps to ensure a quick repair. (UMF 3.) Additionally, Defendant is inspected yearly by the State of California; the State conducted their investigation just 15 days prior to the incident, finding everything to be in order. (UMF 3.) All facts indicate that Defendant made routine, reasonable inspections of the entire property that would have prevented

Based on the evidence presented, the Court finds the evidence establishes that Defendant was not on actual or constructive notice as to the subject condition.  The burden shifts to Plaintiff.

Plaintiff argues that Defendant never provided any warnings regarding grave side soil collapses. (SSUF 5-7.) This risk was never listed in any contract or documents provided to Plaintiff, nor were there any signs warning visitors of potential grave side collapses. (SSUF 10.) This is despite the fact Defendant is on notice that squirrels and gophers inhabit the park, as it has an exterminator come twice a week. (SSUF 54, 56.) She also states that she noticed the ground was uneven, but did not see any holes, in the subject location prior to the fall; she later stated that she noticed the ground near the grave was different than the surrounding ground (SSUF 17, 20.)  The grave itself has not received any maintenance prior to the incident. (SSUF 74-75.)

Plaintiff alleges that the only inspection done in order to make sure a grave is ‘settled’ is watering burial sites for 7 days after burials. (SSUF 70.) This is despite Defendant knowing that graves ‘settle’ during periods of heavy rain; Defendant allegedly stated this was the reason for this incident. (SSUF 68-69.) Despite having knowledge of the fact that graves tend to settle during periods of heavy rain, and the fact it rained relatively recently, Defendant did not warn guests of the potential for settling or prevent them from entering. (SSUF 71-72.)

Plaintiff provides evidence indicating that there is a potential dispute as to material fact as to whether Defendant was on constructive notice as to the subject condition. Defendant stated that heavy rain often resulted in grave settling but provided no warning following a period of heavy rainfall. This, coupled with Plaintiff’s statement that the area around the grave appeared to be uneven or different and the fact that Defendant allegedly does not take additional steps to ensure graves are safe creates a dispute as to material fact that is best left up to a jury. The Court denies the motion.

CONCLUSION

Defendant SCI California Funeral Services, Inc.’s Motion for Summary Judgment is DENIED.

            Moving party is ordered to give notice of this ruling.

Moving Party is ordered to file the proof of service of this ruling with the Court within five days.

The parties are directed to the header of this tentative ruling for further instructions.