Judge: H. Jay Ford, III, Case: 22SMCV02668, Date: 2025-05-20 Tentative Ruling

Case Number: 22SMCV02668    Hearing Date: May 20, 2025    Dept: O

  Case Name:  Kimiabakhsh v. Starbucks Corporation, et al.

SUBJECT:                 MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:   Defendant/Cross-Complainant Target Corporation

RESP. PARTY:         Plaintiff Michelle Joy Kimiabakhsh

TENTATIVE RULING

            Defendant/Cross-Complainant Target Corporation’s Motion for Summary Judgment as to both causes of action within Plainiff Michelle Joy Kimiabakhsh’s Complaint is GRANTED. Defendant meets their burden to show that one or elements of Plaintiff’s causes of action cannot be met. Plaintiff does not meet their burden to show a triable issue of material fact.  Defendant to file the proposed order and proposed judgment.

            Plaintiff’s Request for a Denial or Continuance to allow for further discovery pursuant to CCP § 437c(h) is DENIED. Plaintiff did not show diligence in propounding discovery, nor did Plaintiff declare a reason to believe that facts they seek might exist becase it is not clear what facts Plaintiff is seeking as to Defendant’s liability and duty of care owed to Plaintiff.

REASONING

            “A party is entitled to summary judgment only if it meets its initial burden of showing there are no triable issues of fact and the moving party is entitled to judgment as a matter of law. This is true even if the opposing party fails to file any opposition. The court's assessment of whether the moving party has carried its burden—and therefore caused a shift—occurs before the court's evaluation of the opposing party's papers. Therefore, the burden on the motion does not initially shift as a result of what is, or is not, contained in the opposing papers.” (Mosley v. Pacific Specialty Insurance Company (2020) 49 Cal.App.5th 417, 434–435 [landlord’s failure to address issue of whether they were aware of their tenant’s marijuana growing operation was not grounds to grant summary judgment where moving party failed to satisfy its initial burden as to the issue]; Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086-1087 [court cannot grant summary judgment based merely on lack of opposition; court must first determine if the moving party has satisfied its burden].)

            In addition, the evidence and affidavits of the moving party are construed strictly, while those of the opponent are liberally read. (Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 100. “All doubts as to the propriety of granting the motion (whether there is any issue of material fact [Code of Civil Procedure] § 437c) are to be resolved in favor of the party opposing the motion (i.e., a denial of summary judgment).” (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.)

“A party may move for summary adjudication as to…one or more issues of duty, if the party contends that…that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (CCP §437c(f)(1). )

Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Code of Civil Procedure §437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Id.) If unable to prove the existence of a triable issue of material fact, summary judgment or summary adjudication in favor of the defendant is proper. (Id.)

“The burden on a defendant moving for summary judgment based upon the assertion of an affirmative defense is different than the burden to show that one or more elements of the plaintiff's cause of action cannot be established. Instead of merely submitting evidence to negate a single element of the plaintiff's cause of action, or offering evidence such as vague or insufficient discovery responses that the plaintiff does not have evidence to create an issue of fact as to one or more elements of his or her case the defendant has the initial burden to show that undisputed facts support each element of the affirmative defense. If the defendant does not meet this burden, the motion must be denied.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467–468.)

A plaintiff's “factually devoid” discovery responses may be used to shift the burden of production onto the plaintiff when the “logical inference” is that the plaintiff possesses no facts to support his or her claims.” (Bayramoglu v. Nationstar Mortgage LLC (2020) 51 Cal.App.5th 726, 733; see also Union Bank, supra, 31 Cal.App.4th at p 581 [“plaintiffs' Judicial Council form interrogatory answers which contained no facts supporting the existence of misrepresentations or a fraudulent conspiracy shifted the burden of proof in connection with the summary judgment. Further, plaintiffs failed to provide substantial evidence of deceit on defendant's part or its participation in a fraudulent conspiracy”].)

I.      Defendant Target’s MSJ as to Plaintiff’s First cause of action for Negligence and Second cause of action for Premises liability

            “The elements of a cause of action for negligence are well established. They are (a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)  “[T]he existence of a duty is a question of law for the court. (Kentucky Fried Chicken of Cal., Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.)

            “Premises liability is a form of negligence . . .and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)

a.     Target Satisfies their Burden to show one or more elements cannot be established of both the Negligence and Premises Liability Causes of Action

            Defendant Target Corporation (“Target”) argues they are entitled to summary judgment as to Plaintiff Michelle Joy Kimiabakhsh’s (“Plaintiff”) two causes of action in the Complaint because Plaintiff fails to establish that the poster in which Plaintiff allegedly slipped on belonged to Target and/or Target created the allegedly dangerous condition. Target points to Plaintiffs discovery responses and deposition which Target shows “contained no evidence to support a theory of liability on defendant’s part.” (SSUF, ¶¶ 10, 11; Hahn Decl., ¶¶ 3, 9; Ex. B (“Plaintiff Depo.”), H (Plaintiff’s Responses to SROGS).)

            Specifically, Target points to Plaintiffs response to Target’s SROG No. 12 where Plaintiff stated: “Defendant Target had a Starbucks kiosk/store front in its store located at the subject shopping center. The sign/poster that Plaintiff slipped on at the time of the incident was a Starbucks poster that was on the ground in the parking lot for the subject shopping center . . . .” (SSUF, ¶¶ 10, 11; Hahn Decl., Ex. H, SROG No. 12.)

            Additionally, Target points to Plaintiffs deposition where Plaintiff states the following:

Q: Did anyone at all tell you where that poster came from?

A: No.

Q: Do you know where that poster came from?

A: No.

 . . . .

Q: So my question is, do you have any facts, as we sit here today, yes or no answer, that you believe show that that sign you slipped on in front of the Ralphs store came from Target?

[A]: No.

.

(SSUF, ¶¶ 10, 11; Hahn Decl., Ex. B, Plaintiff Depo., pp. 101:2–6, 252:20–25.)

            These admissible responses and deposition testimony show the absence of any evidence that Target owned the sign, or created the dangerous condition which is enough to shift the burden to the Plaintiff since they show a logical inference that Plaintiff does not possess facts to support her claims. (See Bayramoglu, supra, 51 Cal.App.5th at p. 733.)

            Target also provides evidence that Target was not responsible for placing the Starbucks sign that led to Plaintiffs fall, nor did the subject sign belong to Target. (Deposition testimony from the Subject Target Store Director. Shawn Devine (“Devine”), SSUF, ¶¶ 7, 8, 18, 19; Devine Decl., ¶¶ 1–7.) Devine states that during his time working for the subject Target store “Target did not post signs outside of the parking structure exits other than state mandated COVID-19 cautionary signs,” and upon reviewing the sign that Plaintiff allegedly slipped on, this sign was “markedly different from the COVID-19 signs posted at the Westwood Village Target.” (Devine Decl., ¶¶ 4, 6.) Additionally, Devine declares that only one non-covid related sign was posted outside between “early 2017 through May 31, 2022,” which was an A-Frame chalkboard sign with no paper signs attached, which was destroyed in June 2020, two years prior to the subject incident. (Devine Decl., ¶¶ 7–8.)

            Target also points to evidence from the deposition of Morena Lopez, a Ralphs employee at the Weyburn location within the same building as Target, which also contained a Starbucks location, where Lopez testified she never saw any Starbucks signs posted outside the Target store. (SSUF, ¶¶ 9, 10; Hahn Decl., Ex. G at 121:6–9.) Furthermore, Target points to deposition testimony from Argenis Garcia (“Garcia”), a Weyburn Ralph’s employee, who stated it was Ralph’s practice and procedure to place Starbucks promotional signs on the exterior of the Ralphs entrance at the Subject Premises, also acknowledging that the Starbucks signs “outside of Ralphs’ entrance on the second floor belong to Ralphs.” (SSUF, ¶¶ 12, 21; Hahn Decl., Ex. F at pp. 21:5–9, 64:5–67:25, 70:16–71:7, 77:4–80:16, 84:9–85:17, 95:10–96:3, 108:19–109:20; Ex. G at pp. 78:23–79:7.)

            Additionally, Target shows it is undisputed that that Plaintiff does not contend that the Target located on the Subject Premises and/or the area adjacent to the Target entrance on the subject premises constituted a “dangerous condition.” (SSUF, ¶¶ 23, 24.) Thus, Target shows that they do not owe a duty of care to manage the premises where Plaintiff allegedly tripped and fell, therefore negates an element of premises liability.

            Target has met its burden to show that one or more elements of negligence and premises liability cannot be met, and that Plaintiff’s proffered discovery and deposition show that Plaintiff does not have any admissible evidence to show Target’s liability or that such evidence could be optained.

b.     Plaintiff does not meet their burden to show a triable issue of material fact

            Plaintiff argues that there are triable issues of material fact because Target does not provide evidence expressly stating the subject sign did not belong to Target, and since both Defendants Ralphs and Target have Starbucks kiosks inside their subject locations, it is up to the jury to decide who the sign belonged to between the two Defendants. (Oppo., p. 5; SSUF ¶ 5.) However, Plaintiff does not provide or point to any evidence that the shows the subject sign belonged to Target in order to create triable issue of material fact as to the sign’s ownership.

            It is the Plaintiff’s burden to present evidence that would allow a reasonable trier of a fact to find in their favor. Plaintiff’s must provide some evidence to show that Target owned the sign to refute Target’s proffered evidence, or Plaintiff does not meet their burden. Plaintiff does not point to any possible evidence, or even the possibility of obtaining evidence to show that Target is the subject sign’s owner.

            Plaintiff points to evidence from the Garcia deposition to argue that the poster may or may not have belonged to the Ralphs Starbucks kiosk location. But that is not what the testimony shows.  It simply shows Garcia never saw a promotional poster in the front entrance of Target because he does not go to that front entrance.  (See Weintraub Decl., ¶ 11, Ex. 5 (Garcia Depo, Vol. 2) at p. 80:4–17.) Plaintiff’s evidence does not dispute the fact that no Ralphs employes have seen a Starbucks sign outside the entrance of the subject Target store as Plaintiff proposes their evidence shows.

            Similarly, Plaintiff’s reliance on the testimony of Edith Bernabe is misplaced. (PUMF No 34, Bernabe depo. Tr., 49:24 – 50:20.) As detailed in Target’s Reply, Ms. Bernabe denied promotional materials for Starbucks would be put up outside of the menu board. Nor does her testimony show Target used the type of promotional poster at the Westwood location that Plaintiff claims caused her fall.

            Plaintiff has therefore not met their burden to show a triable issue of material fact that Target owns the subject sign, or whether Target owed a duty to the Plaintiff. Plaintiff has not produced “substantial responsive evidence sufficient to establish a triable issue of material fact.” (Baptist v. Robinson (2006) 143 Cal.App.4th 151, 159.) Plaintiff has only offered evidence that at best gives rise to speculation, which “cannot be regarded as substantial, and is insufficient to establish a triable issue of material fact.” (Ibid.)

            Defendants Motion for Summary Judgment as to both causes of action in the Plaintiff’s Complaint is GRANTED.

II.       Plaintiff’s Request for denial or continuance to obtain additional facts essential to oppose the MSJ is DENIED

            Code of Civil Procedure, section 437c(h) states, “If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit...discovery to be had...” (Code Civ. Proc., § 437c, subd. (h).)

A declaration in support of a request for continuance under section 437c, subdivision (h) must show: “(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts."(Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254.) “ The purpose of the affidavit required by Code of Civil Procedure section 437c, subdivision (h) is to inform the court of outstanding discovery which is necessary to resist the summary judgment motion. ” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 397.) “It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show facts essential to justify opposition may exist.” (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.) “[T]he requesting party's lack of diligence is relevant to the inquiry . . . “ (Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 644.)

Plaintiff requests a continuance in order to complete additional discovery against Ralphs seeking Ralphs contentions about Target’s liability and any evidence Ralphs has to support Targets liability in the matter which responses due on 5-23-25. (Weintraud Decl., ¶¶ 1–6.) Plaintiff also argues that additional time is needed due to the ambiguous deposition responses given by Target’s PMK, Edith Bernabe (“Bernade”) where Bernabe stated repeatedly she did not know whether the Target’s poster had a black backing that is seen on the subject poster. (Weintraub Decl., ¶¶ 3, 7 Ex. 1 at pp. 58:8–59:10.)

Plaintiff’s declaration fails to state “there is reason to believe such facts exist” as to Target’s liability through discovery propounded on a separate Defendant. Plaintiff also did not explain their lack of diligence in filing additional discovery requests onto Defendant Ralphs. Target filed the motion on 1-23-25, and Plaintiff did not propound discovery on Ralphs until 4-21-25 after “multiple attempts to follow up with Ralphs on the matter.” (Weintraub Decl., ¶¶ 4, 5.) The multiple attempts to contact Ralphs were also in April, between 4-21-25 and 4-25-25, and Plaintiff’s counsel references a meeting that occurred one week prior, which still would have been in April 2025, thus Plaintiff’s explanation that Ralphs was not answering their emails does not show Plaintiff diligently was seeking discovery upon the MSJ filing. (See Weintraub Decl., ¶ 13, Ex. 7.) Further it does not appear from the declaration or moving papers that the evidence sought will show a triable issue of material fact exists.

Thus, Plaintiff’s request is DENIED.