Judge: Daniel M. Crowley, Case: BC698706, Date: 2022-12-06 Tentative Ruling

Case Number: BC698706    Hearing Date: December 6, 2022    Dept: 28

Defendant Primestor, CFIC-CG, LLC’s Motion for Summary Judgment

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

BACKGROUND

On March 19, 2018, Plaintiff Lesbian ‘Nineth’ Calderon (“Plaintiff”) filed this action against Defendants Primestor, CFIC-CG, LLC (“Primestor”) and Rosa De Luna (“De Luna”) for negligence and premises liability.

On April 11, 2018, Primestor filed an answer.

On February 16, 2022, Primestor filed a Motion for Summary Judgment to be heard on November 15, 2022. The Court continued the hearing on the motion to December 6, 2022. On November 1, 2022, Plaintiff filed an opposition. On December 1, 2022, Primestor filed a reply.

Trial is currently scheduled for February 15, 2023.

PARTY’S REQUESTS

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

Plaintiff requests the Court deny the motion.

OBJECTIONS

Primestor’s Objections:

Sustained: 1

Overruled: 2, 3, 4, 5, 6

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 at Primestor’s mall, she tripped over an electrical outlet set in the floor at the subject property. (UMF 2.) Plaintiff stated she did not see these circles prior to the incident. Primestor’s property manager examined the area after Plaintiff’s fall, noting that the plate of the electrical outlet in the floor was raised approximately 1/8^th of an inch. (UMF 4.)

Primestor argues that the subject outlet should be considered a trivial defect. The alleged defect was only 1/8^th of an inch above the ground. It was bright inside the mall at the time of the incident. (UMF 2.) There appear to be no jagged edges or other imperfections in the picture presented.

In reviewing the evidence submitted, the Court finds it does not support Primestor’s argument. First, the property manager Ronald Collins (“Collins”) testified that the picture presented differs from than what the subject outlet looked like on the day of the incident. (Exhibit B, 23;2-12.) He specifically states that he did not take a picture of the outlet, and instead “pushed it back down to make it flush.” (Exhibit B, 23; 16-19.) He did not use any instrument to measure the height of the defect, relying entirely on visual inspection. (Exhibit B, 30; 2-10.)

Based on the above, there is little to no probative value to the evidence presented. The picture attached as Exhibit 3 was not taken on the day of the incident, and instead was taken after Primestor’s agents had already repaired the problem. The measurement offered was not even measured with a ruler or a tape measure. Primestor has not met its burden to show there is no dispute as to material fact. The Court denies the motion.

CONCLUSION

Defendant Primestor, CFIC-CG, LLC’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.