Judge: Colin Leis, Case: 21STCV13565, Date: 2022-08-30 Tentative Ruling

Case Number: 21STCV13565    Hearing Date: August 30, 2022    Dept: 3

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES – NORTHEAST DISTRICT

DEPARTMENT 3

MOVING PARTY:                Defendant Castle Liquor Store

RESPONDING PARTY:       N/A

Defendant Castle Liquor Store’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication of Causes of Action One, Two and Three

The court considered the moving papers filed in connection with this motion. No opposition was filed.

BACKGROUND

This action arises from a trip and fall incident that occurred on March 5, 2021. Plaintiff Elias Ocegueda filed this action on April 9, 2021 against various defendants, alleging that a temporary plywood walkway outside of the entrance to Castle Liquor Store was a dangerous condition and caused him to sustain bodily injuries. Defendant William’s Paving Corp. was the contractor working at the site of the incident. Defendant Schrier Family Trust owned the property and leased it to Defendant Castle Liquor Store (“Castle Liquor”). Defendant William J. Waldman and Waldman Real Estate Services, Inc. were the property managers. The complaint asserts causes of action for (1) general negligence, (2) premises liability, and (3) negligence per se.

Castle Liquor[1] now moves for summary judgment or, in the alternative, summary adjudication.

LEGAL STANDARD

“[A] motion for summary judgment shall be granted 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 a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (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.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.) 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.)

DISCUSSION

Castle Liquor contends that it cannot be held liable for negligence or premises liability[2] because Castle Liquor owed no duty of care with respect to the plywood walkway or the common area of the property where Plaintiff sustained his injuries. (Owens v. Kings Supermarket (1988) 198 Cal.App.3d 379, 386 [“The courts . . . have consistently refused to recognize a duty to persons injured in adjacent streets or parking lots over which the defendant does not have the right of possession, management and control.”].) In support, Castle Liquor submits evidence that the location where Plaintiff fell was not within the premises leased by Castle Liquor. (Castle Liquor’s Undisputed Material Fact (“UMF”) 4.)[3] Plaintiff testified at deposition that the dangerous condition was outside of Castle Liquor Store, that he stepped out of the store and took a few steps onto the plywood, that the plywood was placed on the sidewalk outside of Castle Liquor Store, and that he fell after stepping onto the plywood. (Wolf Decl., ¶ 6, Ex. 5 (Ocegueda Depo.), pp. 29:24-30:6, 40:11-13, 61:12-16.) Under Castle Liquor’s lease with the property owner, the sidewalk outside of Castle Liquor Store is a common area that is under the exclusive control of the property owner. (Chon Decl., ¶¶ 3-7, 9-11, Exs. 1, 2.) Indeed, the contractor acknowledged in discovery that it was responsible for “putting down plywood, posting bright orange cones and placing yellow caution tape around the construction site….” (Wolf Decl., Ex. B(6) [Response to Form Interrogatory No. 17.1].) Castle Liquor also submits that prior to the incident on March 5, 2021, it never undertook, nor instructed any of its employees or agents to undertake any act with respect to the care, maintenance, or repair of the sidewalk adjacent to Castle Liquor Store. (Chon Decl., ¶ 12.)

But that does not end the duty analysis, for Plaintiff also alleges negligence per se. Castle Liquor correctly argues that negligence per se it is not an independent cause of action but is instead an evidentiary presumption under negligence law. (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285.) In order for it to apply, a plaintiff must establish that the defendant violated a statute, ordinance, or regulation of a public entity. (Ibid.) Citing to responses to Form Interrogatories (Exhibit B(7)), Castle Liquor argues that Plaintiff cannot show such a violation. (Mot., p. 6:8-9.) But Exhibit B(7) is not Plaintiff’s responses to Form Interrogatories; Exhibit B(7) is William’s Paving’s responses to Requests for Admission. Given the evidentiary miscitation, the court finds that Castle Liquor has not met its initial burden of showing that the presumption of negligence cannot be established to apply to the underlying negligence/premises liability claim.

CONCLUSION

Based on the foregoing, the court denies Castle Liquor’s motion for summary judgment in its entirety.

Castle Liquor is ordered to give notice of this ruling.

IT IS SO ORDERED.

DATED:  August 30, 2022

_____________________________

Colin Leis

Judge of the Superior Court