Judge: Daniel M. Crowley, Case: 20STCV37227, Date: 2022-08-24 Tentative Ruling

Case Number: 20STCV37227    Hearing Date: August 24, 2022    Dept: 28

Defendant Pioneer Theaters, Inc.’s Motion for Summary Judgment

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

BACKGROUND

On September 29, 2020, Plaintiff Ana Vallecios filed this action against Defendant Pioneer Theaters, Inc. dba The Roadium Open Air Market (“Defendant”) for general negligence and premises liability.

Defendant filed its answer on May 5, 2021, as well as a Cross-Complaint against Cross-Defendants Zulma Diaz-Moreno (“Diaz-Moreno”) and Santiago Zarate Martinez (“Martinez”). 

On June 10, 2022, Defendant filed a Motion for Summary Judgment to be heard on August 24, 2022. Plaintiff filed an opposition on August 10, 2022. On August 19, 2022, Defendant filed a reply.

Trial is currently scheduled for November 1, 2022.

PARTY’S REQUESTS

Defendant requests the Court grant summary judgment on the basis that there is no dispute as to material facts.

Plaintiff requests the Court deny the mot

OBJECTIONS

Plaintiff’s Objections:

Sustained: 1, 2, 9, 12

Overruled: 3, 4, 5, 6, 7, 8, 10, 11, 13

Defendant’s Objections

Sustained:

Overruled: 1, 2, 3

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 shopping at an outdoor swap meet on Defendant’s premises, a metal pole and canopy struck her in the head. (SSMUF 11.) Defendant states that this was a vendor’s canopy which Defendant had no control over, other than requiring it be safely secured and sufficiently weighed down. (SSUMF 8.) The vendors were taking down the canopy at the time of the incident. (SSMUF 10.)

Although Defendant owned the subject location, Defendant did not own, control, or maintain the subject pole or canopy. Defendant rented the subject location to Cross-Defendants, relinquishing possessory interest in the land during the period of time subject to that agreement. A landlord is only liable for premises liability if the landlord has actual knowledge of the hazard and the right and ability to remedy it. There is no indication that Defendant was aware of any defect with the canopy or pole, or that Defendant would have had the right to fix any defect.

Plaintiff argues that, as Defendant stated, the subject vendors were not employees of Defendant, but rather licensees. They are described as such in Defendant’s rules and regulations, with explicit language stating vendors are not tenants or other forms of permissive users. (UMF 31.)  Defendant provides flyers with graphics and instructions on how to set-up their space properly, including information on how to set up a tent’s poles and a canopy's weights. (UMF 62.) Violating canopy and pole safety requirements can result in monetary fines and a loss of selling privileges. (UMF 63-64.). There were no provided rules or regulations regarding how to take down or dissemble canopies. (UMF 77-78.) Plaintiff argues that because of this distinction, Defendant has not met its burden. The Court agrees—as the vendors were only licensees and not tenants, Defendant still has the obligations of a typical land possessor.

Defendant argues that Plaintiff did not articulate the difference between a tenant and a licensee. Regardless, the Court finds that because the vendors are explicitly limited to being simple “licensee[s]”, Defendant cannot state that there is no dispute as to whether Defendant had a duty. Multiple parties can control, own or maintain a space, and the facts as provided provide a reasonable basis to establish Defendant exerted some level of control over the space.

Defendant’s argument regarding lack of vicarious liability is inapplicable. Should Defendant had retained control over the land, a land possessor can still be liable for dangerous conditions caused by third parties should Defendant known/should have known about it, and not acted.

Based on the above, the Court denies the motion.

CONCLUSION

Defendant Pioneer Theaters, 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.