Judge: David A. Hoffer, Case: 30-2020-01165590, Date: 2022-09-26 Tentative Ruling

The motion by defendant/cross-complainant/cross-defendant Kohl’s, Inc. (“Kohl’s”) for summary judgment or alternatively summary adjudication in its favor and against plaintiff Kim Martha Lang (“plaintiff”) is DENIED.

Preliminary Matters

Kohl’s request for judicial notice of the surveillance video from October 22, 2018, depicting plaintiff’s incident, is GRANTED as to the existence of the video.  The court does not take judicial notice of the interpretation of the video. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113).

The court declines to rule on Kohl’s objections to the White declaration and Nerhus Exhibits. (CCP §437c(q)).

Summary Judgment Standards

A defendant seeking summary judgment must show that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action. (CCP §437c(p)(2))

“The party moving for summary judgment bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850)

The affidavits of the moving party are strictly construed and those of the opponent liberally construed under well-established rules governing summary judgment motions. (Munro v. Regents of the University of California (1989) 215 Cal.App.3d 977, 983).

Summary judgment is a drastic procedure and may not be granted unless it is clear from the declarations that no triable issue of material fact exists. (Johnson v. Superior Court 2006) 143 Cal.App.4th 297, 304) Any doubts about the propriety of granting the motion must be resolved in favor of the opposing party. (Id.).

Merits

Kohl’s moves for summary judgement or alternatively for summary adjudication of the following issues: (1) that Kohl’s owed no duty to plaintiff; (2) that plaintiff’s negligence cause of action fails because no action or omission by Kohl’s proximately caused plaintiff’s alleged injuries, and (3) that plaintiff’s third cause of action for premises liability fails because no action or omission by Kohl’s proximately caused Plaintiff’s alleged injuries.

A triable issue of material fact exists as to Kohl’s duty

“To prevail in an action for negligence, the plaintiff must demonstrate that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach proximately caused the plaintiff's injuries.” (Lawson v. Safeway Inc. (“Lawson”) (2010) 191 Cal.App.4th 400, 416) The elements of negligence and premises liability causes of action are the same. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158). 

“Premises liability “‘is grounded in the possession of the premises and the attendant right to control and manage the premises; accordingly, ‘mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.’”. (Ibid.) 

In its separate statement, Kohl’s did not make a prima facie showing of the nonexistence of its right to control the parking in front of the store. Further, plaintiff presented evidence that Kohl’s is responsible for maintenance of the parking area where the incident occurred (Emeis Depo. 77:2-13), and Kohl’s does not dispute this fact. (PUMF 2).

Premises liability rests on the owner or occupier having either actual or constructive knowledge of a dangerous condition or the ability, by the exercise of ordinary care, to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. (Ortega v. Kmart Corp. (2001) 26 Cal.App.4th 1200, 1206)

Kohl’s met its initial summary judgment burden by establishing that it did not have notice of the alleged dangerous condition created by the UPS truck parked in the fire lane.  Kohl’s established that, on 10/22/2018, when plaintiff exited the Kohl’s Fullerton store, she saw a UPS truck parked in the area where the curb was marked red to indicate a fire lane. (UMF 1, 3-4)  There was a yellow crosswalk several feet behind the rear of the parked UPS truck cutting through the driving lanes and connecting the sidewalk to the parking area. (UMF 5) Plaintiff did not use the crosswalk; she needed to go to her right, past the back of the UPS truck to get to her car. (UMF 6) Plaintiff intentionally walked a little further down the sidewalk, to her right, to see around the parked UPS truck. (UMF 7) Plaintiff was hit by Nerhus’ vehicle at least 5 to 7 feet after clearing the UPS truck. (UMF 9) Nerhus’ vision was impeded by sunlight approximately one second before impact. (UMF 15).

Kohls also established that the UPS driver was trained by his supervisors, and not Kohl’s, to park in the front of the store to make deliveries (UMF 19-20) and that Kohl’s cannot designate details on how deliveries are made except which entrance to receive deliveries. (UMF 26) When deliveries are made, Kohl’s expected UPS drivers to park in regular designated parking spots (UMF 27). UPS did not condone parking in the fire lanes which were for emergency vehicles to access the store. (UMF 28-29) Further, the store never had any complaints about delivery trucks parking in the fire lane, and it was not aware that the UPS truck was present at the time of the incident. (UMF 32)

Having established that it did not have actual or constructive knowledge of a dangerous condition on the day of the incident, the burden then shifted to the plaintiff to show a triable issue of material fact, which she has done.

A triable issue of material fact regarding Kohl’s notice of the alleged dangerous condition is found in the testimony of Angel Rodriguez, the UPS driver on the day of the incident. At least three times prior to that day, he requested that Kohl’s change its procedure so he could deliver to the rear entrance because it was safer for everyone because there was no traffic back there. (Purcell Decl., Ex 2, 74:6-21; 79:20-24; 85:3-5; 90:18-22; 92:3-16).  Kohl’s does not dispute that Mr. Rodriguez asked Kohl’s to change its procedure so he could always be able to make deliveries through the rear entrance and that the request was repeated numerous times -- to no avail. (PUMF 23-24) Although Kohl’s disputes that Mr. Rodriguez expressly told Kohl’s that it would be safer to make deliveries in the rear, the evidence of the opposing party is liberally construed in its favor on summary judgment, and Kohls’ does not offer evidence to the contrary. Also, Kohl’s does not dispute that, when delivery trucks are parked in the fire lane, they impact sight lines of vehicles and pedestrians in the parking lot. (PUMF 13) Kohl’s manager agreed that, when he would walk out and talk to delivery trucks parked at the entrance to the store, he would see the truck blocking part of the roadway. (Emeis depo, 29:21-30:10) These facts together create a triable issue of material fact regarding whether Kohl’s had actual or constructive notice of a dangerous condition created by delivery trucks in the parking area at the entrance to its store, or the ability, by the exercise of ordinary care, to discover the condition.

Plaintiff also has shown a triable issue of material fact exists regarding the element of duty because Kohl’s had 2 entrances, one in the front for customers and one in the back for deliveries (PUMF 6). At the time of the incident, Kohl’s accepted deliveries in the rear entrance, including from UPS, (PUMF 8) and had designated parking spots for deliveries at the rear entrance (PUMF 7) but nevertheless designated the front entrance for UPS deliveries.

As the court previously noted, it is foreseeable that a large truck parked near a store entrance in a shopping center poses a risk of blocking a pedestrian’s view of traffic when exiting the store, affecting their path of travel, which is sufficiently likely to result in the type of accident that occurred in this case. (ROA #137; See also Lawson, supra)

A shopping center has a duty to its patrons to take reasonable steps to protect against foreseeable illegal acts of third persons which are likely to occur in the absence of such precautionary measures. (See Delgado v. Trax Bar &Grill (2005) 36 Cal.4th 224, 235-236).

Finally, as to Kohl’s argument that it owed no duty under Millsap v. Federal Express Corp. (1991) 227 Cal.App.3d 425 because it is not liable for the acts of independent contractors, Millsap is inapposite. It is not a premises liability case.  There were no allegations that the accident happened on the property owned or controlled by the defendants.

Having failed to establish that it owed no duty to plaintiff, the motion for summary judgment and summary adjudication of the first issue are denied.

Kohl’s has not negated the element of causation.  Therefore, issues 2 and 3 fail.

The causation element is shown by establishing that the defendant’s breach of duty to exercise ordinary care was a substantial factor in bringing about plaintiff’s harm. (Ortega, supra, 26 Cal.4th at p. 1205).

Proximate cause is generally a question of fact for the jury (Lawson, supra, 191 Cal.App.4th at p. 416), except in cases where facts as to causation are undisputed. (Ortega, supra, 26 Cal.4th at p. 1205).

The second and third issues concern causation but are supported by the same 33 facts used to support the first issue regarding Kohl’s duty. Kohl’s separate statement does not establish that Kohl’s conduct was not a substantial factor in causing plaintiff’s injuries, and, even if it did, plaintiff has shown that the facts as to causation are disputed. 

For all of the above reasons, the motion is denied.

Plaintiff is ordered to give notice of this ruling.