Judge: Cynthia A Freeland, Case: 37-2021-00052770-CU-PO-NC, Date: 2024-06-21 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - June 20, 2024

06/21/2024  01:30:00 PM  N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited  PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2021-00052770-CU-PO-NC CURR VS IN N OUT BURGERS [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 12/11/2023

Defendant In-N-Out Burgers ('Defendant')'s motion for summary judgment is granted.

Initial Considerations Plaintiff's Evidentiary Objections Plaintiff Joan Curr ('Plaintiff')'s evidentiary objections are overruled as procedurally deficient. California Rules of Court ('CRC'), Rule 3.1354 prescribes the format for evidentiary objections. More specifically, CRC, Rule 3.1354(b) provides that: All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must: (1) Identify the name of the document in which the specific material objected to is located; (2) State the exhibit, title, page, and line number of the material objected to; (3) Quote or set forth the objectionable statement or material; and (4) State the grounds for each objection to that statement or material.

Cal. R. Ct. 3.1354(b).

In this case, Plaintiff has not submitted her evidentiary objections in a Code-compliant format. While she has identified in the left column of her evidentiary objections the names of the documents to which she has objected, i.e., 'Defendant's Exhibit A – Declaration of Jaime Arcega', 'Defendant's Exhibit B – Declaration of John Mark Jennings', 'Defendant's Exhibit C – Declaration of John Brault', and 'Defendant's Exhibit D – Declaration of Corey H. Collins', the remaining aspects of Plaintiff's objections do not comport with the requirements of CRC, Rule 3.1354(b). As set forth above, Plaintiff must state the page and line number of the material(s) to which she objects as well as quote or set forth the objectionable statement(s) or material(s). She fails to do so. Simply identifying, in general terms, the exhibits and documents contained therein, without more, is insufficient. Furthermore, Plaintiff, in the right Calendar No.: Event ID:  TENTATIVE RULINGS

3076069 CASE NUMBER: CASE TITLE:  CURR VS IN N OUT BURGERS [IMAGED]  37-2021-00052770-CU-PO-NC column of her evidentiary objections, has identified three separate grounds on which she bases her objections to all the identified materials, i.e., 'Hearsay', 'Best Evidence Rule', and 'Partial Evidence Rule'. However, Plaintiff fails to identify the specific material in each document to which each objection applies. Additionally, Plaintiff has failed to submit a Code-compliant proposed order on her evidentiary objections. See Cal. R. Ct. 3.1354(c).

Accordingly, the court overrules Plaintiff's evidentiary objections as procedurally deficient.

Plaintiff's 'Evidence' In Support of Her Opposition to the Motion Of greater importance is Plaintiff's failure to submit any admissible evidence in support of her opposition.

The 'evidence' Plaintiff has submitted is supported only by Mr. Kasler's declaration. To start, Mr.

Kasler's declaration is procedurally deficient and thus inadmissible because it does not comply with the requirements of California Code of Civil Procedure ('CCP') § 2015.5. More specifically, Mr. Kasler has not: (1) certified or declared that his statements are true and correct under penalty of perjury, and (2) identified the date and location at which he executed his declaration (to the extent he executed his declaration within California). See Cal. Code Civ. P. § 2015.5.

Even if Mr. Kasler's declaration had been submitted in a procedurally appropriate manner, it fails to support the 'evidence' Plaintiff has submitted in support of her opposition. First, Mr. Kasler has failed to properly authenticate: (1) Plaintiff's responses to Defendant's Form Interrogatories (Set One) and Special Interrogatories (Set One) (Exhibit B); (2) Defendant's responses to Plaintiff's Special Interrogatories (Set One) (Exhibit F); (3) Mr. Arcega's deposition transcript (Exhibit C); (4) the screenshot of the dining area of the subject location marked as Exhibit E to Mr. Arcega's deposition transcript (Exhibit D); and (5) the December 24, 2019 Customer Incident Report marked as Exhibit G to Mr. Arcega's deposition transcript (Exhibit E). Consequently, the court sustains Defendant's fifteenth, sixteenth, seventeenth, eighteenth, nineteenth, and twentieth evidentiary objections.

Additionally, the remainder of Mr. Kasler's declaration is inadmissible in its entirety. Mr. Kasler, for the most part, has failed to establish that he has personal knowledge to testify to the matters set forth in his declaration. For instance, Mr. Kasler has not demonstrated the requisite personal knowledge to provide declaratory evidence as to: (1) Plaintiff's pain and mobility following her scar tissue removal surgery; (2) whether Plaintiff was waiting for her husband before entering the subject location; (3) whether Plaintiff had difficulty stepping onto the curb; (4) when Plaintiff observed the mat inside the subject location; (5) the cause of Plaintiff's fall; (6) the cleanliness of the mats at the time of Plaintiff's fall; (7) the number of individuals who traversed the mats before Plaintiff's fall; and (8) whether Plaintiff saw where she tripped.

Additionally, Mr. Kasler has offered inadmissible speculation that and/or conclusions about: (1) a gap between the mats should not have existed; (2) the number of individuals who traversed the mats before Plaintiff's fall; and (3) the cleanliness of the mats at the time of Plaintiff's fall. Furthermore, Mr. Kasler's assertion at ¶ 6 of his declaration that '[e]mployees walking is not the equivalent to a safety check' is an inadmissible legal conclusion. In addition, Mr. Kasler has not laid the proper foundation that he is qualified to opine on Plaintiff's medical condition(s), her previous knee surgeries, and how her health condition(s) impacted her mobility on the day of the incident. Finally, Mr. Kasler's declaratory 'evidence' as to what instructions Plaintiff's doctor(s) provided her constitutes inadmissible hearsay. Consequently, the court sustains Defendant's remaining evidentiary objections.

Based on the foregoing, the court sustains Defendant's objections to the 'evidence' Plaintiff has submitted in support of her opposition. As will be explained below, Plaintiff's failure to submit any admissible evidence of a triable issue of material fact is fatal to her case.

Factual Background and Procedural History This action concerns a trip-and-fall accident. On December 24, 2019, Plaintiff and her husband, Rodd Curr ('Mr. Curr'), visited the In-N-Out restaurant located at 1260 West Valley Parkway, Escondido, CA 92029 ('Store #247). See First Amended Complaint ('FAC'); Defendant's Separate Statement of Calendar No.: Event ID:  TENTATIVE RULINGS

3076069 CASE NUMBER: CASE TITLE:  CURR VS IN N OUT BURGERS [IMAGED]  37-2021-00052770-CU-PO-NC Undisputed Material Facts ('UMF'), ¶ 1. Plaintiff and Mr. Curr ordered food through the drive-thru lane and proceeded to eat their meals in their parked car. See Defendant's UMF, ¶ 2. After the Currs finished eating, Mr. Curr dropped Plaintiff off near the door of Store #247 so that Plaintiff could enter and use the restroom. Ibid., ¶ 3. Plaintiff, who had undergone scar tissue removal surgery on her right knee two or three weeks prior, then entered the dining area of Store #247. Plaintiff testified that there were two mats near the front door as she entered. Ibid., ¶ 7. The security camera footage submitted by Defendant in support of its motion shows that the mats, which were dark in color against a lighter gray and tan checkered flooring, were positioned one in front of the other with a small gap of approximately two to three inches between them. Plaintiff testified that she walked across the first mat successfully; however, she caught her foot on a raised part of the mat, causing her to fall forward and injure herself. Ibid., ¶ 8.

Plaintiff further testified that, while she observed the second mat, she was looking forward, i.e., not down, while walking. She did not see a raised edge of the mat either before or after her fall. Ibid., ¶¶ 9-13. Plaintiff admitted at her deposition that '[i]f I had been looking down, I probably wouldn't have tripped.' Ibid., ¶ 14. At the time Plaintiff fell, Store #247 was well lit, with numerous overhead lights and two large glass doors allowing ample exterior light. Ibid., ¶ 16. Plaintiff testified that the mat did not appear dirty and that she did not notice anything wrong with the mat. Ibid., ¶ 17.

On December 17, 2021, Plaintiff commenced this action by filing a Complaint against Defendant. See ROA No. 1; Plaintiff's Compendium of Exhibits, Ex. 9. The operative FAC, filed on May 26, 2023, alleges causes of action against Defendant for general negligence and premises liability. See ROA No. 25. The FAC alleges that the mat upon which Defendant tripped constituted a dangerous condition at Store #247 to which Defendant negligently failed to maintain, inspect, control, manage, clean, use, and/or repair.

Defendant seeks summary judgment as to all causes of action.

Legal Analysis Motions for summary judgment and adjudication are subject to the same rules and procedures. See Lunardi v. Great-West Life Assurance Co. (1995) 37 Cal. App. 4th 807, 819; Cal. Code Civ. P. § 437c(f)(2). The court applies a three-step analysis when ruling on a motion for summary judgment or adjudication: (1) identify the causes of action, issue(s) of duty or defense framed by the pleadings; (2) determine whether the movant has satisfied his or her burden of showing the defense or causes of action have no merit because one or more elements cannot be established, or that there is a complete defense to the cause or causes of action, or that a duty exists or does not exist; and (3) if the movant has made a prima facie showing that he or she is entitled to judgment as a matter of law, the burden shifts and the court determines whether the opposing party has provided evidence of a triable material fact as to the cause of action, issue of duty or defense. See Linden Partners v. Wilshire Linden Assocs.

(1998) 62 Cal.4th 508, 518; Choi v. Sagemark Consulting (2017) 18 Cal. App. 5th 308, 318 (citing Cal. Code Civ. P. §§ 437c(o), (p)(2); Pipitone v. Williams (2016) 244 Cal. App. 4th 1437, 1449). The opposing party 'must set forth specific facts beyond the pleadings to show the existence of a triable issue of material fact.' Choi, 18 Cal. App. 5th at 318 (citing Cal. Code Civ. P. § 437c(p)(2)). 'There is a triable issue of 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. The court must 'liberally construe the evidence in support of the [opposing party] and resolve doubts concerning the evidence in favor of that party.' Dore v. Arnold Worldwide, Inc. (2006) 39 Cal. 4th 384, 389.

Defendant's motion for summary judgment is granted. '[C]laims for negligence and premises liability have the same elements – namely, (1) 'a legal duty of due care,' (2) 'breach of that duty,' and (3) 'proximate cause resulting in injury.'' Issakhani v. Shadow Glen Homeowners Assn., Inc. (2021) 63 Cal. App. 5th 917, 924 (quoting Kesner v. Sup. Ct. (2016) 1 Cal. 5th 1132, 1158).

The court finds that Defendant has demonstrated entitlement to judgment as a matter of law by demonstrating that Plaintiff cannot establish one or more elements of her negligence and premises liability claims. As an initial matter, Plaintiff has alleged in her FAC that her fall was caused by a dangerous condition, 'namely a mat that had been improperly placed and was protruding.' See FAC, p. Calendar No.: Event ID:  TENTATIVE RULINGS

3076069 CASE NUMBER: CASE TITLE:  CURR VS IN N OUT BURGERS [IMAGED]  37-2021-00052770-CU-PO-NC 4. Plaintiff likewise testified at her deposition that she tripped on the mat because 'something was raised on it or something . . . the edge of it I guess.' See Plaintiff's Deposition Transcript, 48:24-49:30. Plaintiff, in her opposition, now suggests that the gap between the mats, as opposed to a raised protrusion on the second mat, caused her accident. This argument is not well taken to the extent Plaintiff attempts to advance theories not previously pled. 'Under settled summary judgment standards, we are limited to assessing those theories alleged in the plaintiffs' pleadings.' Falcon v. Long Beach Genetics, Inc. (2014) 224 Cal. App. 4th 1263, 1275. Indeed, 'a motion for summary judgment must be directed to the issues raised by the pleadings. The [papers] filed in response to a defendant's motion for summary judgment may not create issues outside the pleadings and are not a substitute for an amendment to the pleadings.' County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 332 (emphasis in original).

That being said, the undisputed admissible evidence establishes that the mat did not constitute a dangerous condition as a matter of law. Under California law, a store owner is not an insurer of the safety of its patrons. Nevertheless, the owner does owe its patrons a duty to exercise reasonable care in keeping the premises reasonably safe. See Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1205. Such care requires that the owner make reasonable inspections of the portions of the premises open to customers, with the level of care commensurate with the risks involved. See Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal. App. 4th 472, 476. 'Generally speaking, a property owner must have actual or constructive knowledge of a dangerous condition before liability will be imposed.' Getchell v. Rogers Jewelry (2012) 203 Cal. App. 4th 381, 385. 'Evidence of a store owner's failure to inspect the premises within a reasonable period of time prior to the accident is indicative of defendant's negligence and creates a reasonable inference that the dangerous condition existed long enough for it to be discovered by the owner.' Peralta v. Vons Companies, Inc. (2018) 24 Cal. App. 5th 1030, 1036-1037. However, '[t]he fact that an accident occurred does not give rise to a presumption that it was caused by negligence. Instead, the injured plaintiff must establish sufficient facts or circumstances that support an inference of a breach of duty, to defeat a summary judgment motion by a defendant that is asserting due care was exercised. It is not enough for the plaintiff to provide speculation or conjecture that a dangerous condition of property might have been present at the time of the accident.' Howard v. Omni Hotels Management Corp. (2012) 203 Cal. App. 4th 403, 432.

In this case, Plaintiff testified that she saw the mat yet did not observe what she tripped on. She admitted that she never saw the alleged raised edge of the mat before or after her fall. She merely speculates that a raised portion of the mat caused her accident, which speculation is insufficient to survive Defendant's summary judgment motion. Moreover, the security footage and photographic evidence submitted by Defendant demonstrates that the mat did not have any raised edges. Additionally, Plaintiff testified, which testimony has been corroborated by Defendant's Division Manager, Jaime Arcega, that there was no debris or dirt on the mat that may have caused Plaintiff's fall. Additionally, and notably, Plaintiff also has failed to submit evidence demonstrating that Defendant had actual or constructive knowledge or notice that the mat constituted a dangerous condition. Indeed, the only evidence submitted on this issue is from Defendant. Mr. Arcega states in his declaration that: (1) In-N-Out associates conduct regular sweeps of the premises to determine whether anything needs to be cleaned, fixed, and/or restocked; (2) associates keep a 'lot check card' reflecting completed sweeps; (4) the lot check card submitted with Mr. Arcega's declaration shows that such a sweep was conducted in the dining room of Store #247 moments before Plaintiff's accident; and (5) in his six-year tenure at Store #247, Mr. Arcega was not aware of any customer complaints concerning tripping on floor mats. Furthermore, Mr. Arcega inspected the mat immediately following the subject incident and found no raised edges over which Plaintiff could have tripped.

Even if the court did find that the mat constitutes a dangerous condition, which it has not, the court nevertheless would grant summary judgment in Defendant's favor because the undisputed admissible evidence establishes that any such dangerous condition as open and obvious. The Second District Court of Appeal has stated: Foreseeability of harm is typically absent when a dangerous condition is open and obvious. (Osborn, Calendar No.: Event ID:  TENTATIVE RULINGS

3076069 CASE NUMBER: CASE TITLE:  CURR VS IN N OUT BURGERS [IMAGED]  37-2021-00052770-CU-PO-NC supra, 224 Cal.App.3d 104 at pp. 114-121, 273 Cal.Rptr. 457.) '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.' (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393, 9 Cal.Rptr.2d 124.) 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. (Haberlin v. Peninsula Celebration Assn. (1957) 156 Cal.App.2d 404, 408, 319 P.2d 418.) An exception to this general rule exists when '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).' (Osborn, supra, 224 Cal.App.3d at p. 122, 273 Cal.Rptr. 457, italics omitted.) In other words, while the obviousness of the condition and its dangerousness may obviate the landowner's duty to remedy or warn of the condition in some situations, such obviousness will not negate a duty of care when it is foreseeable that, because of necessity or other circumstances, a person may choose to encounter the condition.

Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal. App. 5th 438, 447.

In this case, the undisputed evidence shows that: (1) Plaintiff observed the mat when she approached it, though she admitted that she was looking up, rather than down, as she walked; (2) the mat was dark in color and thus perceptible against a light-colored floor; and (3) the room was well lit by both interior and exterior lighting. Moreover, in the roughly one hour and nine minutes before the incident, the mat had been traversed successfully about 515 times. Additionally, Plaintiff conceded she probably would not have tripped if she had been looking down. Plaintiff has not provided admissible evidence that anyone, other than herself, tripped and/or suffered an injury as a result of a raised edge on the mat. Mr. Arcega and Defendant's biomechanics expert, John Brault, have represented that the mat did not contain any such raised edge. Under the circumstances, the court finds that the condition of the mat was open and obvious as a matter of law.

Given the above, the court concludes that it need not address the trivial defect argument.

Accordingly, the court grants Defendant's motion for summary judgment.

Conclusion In light of the foregoing, the court grants Defendant's motion for summary judgment. The court directs Defendant to submit a proposed Judgment within ten (10) days of this hearing.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, June 21, 2024. If no party appears at the hearing, this tentative ruling will become the order of the court as of June 21, 2024. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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