Judge Jill Feeney, Case 19STCV42668 2022-10-04 Tentative Ruling

The parties are encouraged to meet and confer concerning this tentative ruling to determine if there is an agreement to submit.

Regardless of whether there is any such agreement, each party who wishes to submit must send an email to the Court at sscdept30@lacourt.org indicating the party's intention to submit.

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This is an action for general negligence and premises liability arising from a slip and fall incident which took place in November 2017. Plaintiff Fan Qiu Meng filed her Complaint against Valley Supermarket (“VSI”), Yellow River Corporation, and Does 1 to 50 on November 26, 2019.

Plaintiff argues that triable issues of material fact remain over whether VSI was negligent because it customarily placed goods for sale on pedestrian walkways. Plaintiff argues VSI had a duty to reasonably secure the portion of the parking lot where she was injured because VSI piled goods in the pedestrian walkway, forcing Plaintiff to walk in the parking lot.

VSI moves for summary judgment on the grounds that (1) VIC cannot establish its cause of action for express written indemnity because VIC seeks indemnification for a loss that is not within the scope of the lease, and (2) VIC cannot establish its second cause of action for express written indemnity because VSI had no duty related to the common area.

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 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.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c(p)(2).) “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 the cause of action or a defense thereto.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.” (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c(c).)

“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, internal quotations omitted.) “The first element, duty, may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship.” (Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128, internal quotations omitted.) “[T]he existence of a duty is a question of law for the court.” (Ky. Fried Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819.)

“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.) “[P]roperty owners are liable for injuries on land they own, possess, or control. But . . . the phrase own, possess, or control is stated in the alternative. A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162.)

Here, VSI’s evidence shows that Plaintiff fell on November 26, 2017 as she was walking along the outdoor walkway of the commercial property located at 1251 E. Valley Blvd., Alhambra, CA, 91801. (UMF No. 1.) Plaintiff fell after tripping on an unmarked elevation change at the concrete curb along a pedestrian ramp leading to the parking lot because it lacked markings or signs. (UMF No.2.) Plaintiff describes in her deposition that she was following her husband and walked toward the pedestrian ramp to avoid traffic:

A: Okay, so me and my husband, we walked out of the door and, again, we see things packed on the pedestrian walk. So we walked a couple steps forward, and then we turned right towards – going towards the parking lot. After ten-plus steps, we come through a sloped path. And that was the pedestrian road of the supermarket.

A: So my husband was in front of me. I was following him, and I was trying to avoid oncoming traffic. So then I saw the slopy path, and that’s where I walked into it. That’s where – where the pedestrian road is to that supermarket. So I walked into it, and I tripped.”

VSI leased the premises from VIC after the lease was assigned to VIC on May 28, 2015. (UMF No. 3.) VSI’s lease with VIC states VSI shall not have any rights to the roof or exterior walls of the building or any other buildings in the plaza. (UMF No. 5.) The lease defines the common area as all areas and facilities outside the Premises and within the exterior boundary line of the Project including parking areas, loading and unloading areas, trash areas, roadways, walkways, driveways, and landscaped areas. (UMF No. 6.) VIC retained the exclusive right to make changes to the common areas and was required to maintain the common area. (UMC Nos. 9, 12.)

VSI’s evidence shows that Plaintiff fell on a sloped pedestrian ramp while she was following her husband from the store entrance to the parking lot. Although Plaintiff notes there were goods piled in the walkway closes to the building, her testimony shows she was following her husband down the ramp to the parking lot using the same route she used to enter the building. The area where Plaintiff fell is defined as a common area because it is a walkway. According to the terms of VSI’s lease, VSI had no discretion to make any changes to the ramp. Thus, VSI had no control over the ramp. Plaintiff’s argument that VSI created the dangerous condition which led to her injury fails because she consistently states she was following her husband out to the parking lot. There is no evidence that the goods in the other walkway forced her to walk into the pedestrian ramp. Additionally, there were other routes Plaintiff could have taken and she chose to walk toward the ramp because she was following her husband. VSI meets its burden of showing no material issues of fact exist over whether it had a duty to protect Plaintiff from the pedestrian ramp.

The burden shifts to Plaintiff. Plaintiff argues that the goods piled in the walkway in front of the building also caused her fall. Although Plaintiff’s response to Defendant’s separate statement states she was forced to walk toward the pedestrian ramp by the goods piled in the other walkway, there is no evidence of this in Plaintiff’s deposition or her declaration. Rather, Plaintiff consistently states she fell because of the unmarked pedestrian ramp. It would be too tenuous to infer that the sight of the goods piled in the walkway caused Plaintiff’s fall.

The pictures taken on the day of the accident makes it clear that Plaintiff fell on the pedestrian ramp and that the area where she fell was well away from the entrance to the market where items were stacked outside. (Plaintiff’s Exhibit A, Exhibit B).

Plaintiff relies on Alcaraz v. Vece (1997) 14 Cal.4th 1149, which states that “the courts have long held that one who invites another to do business with him owes to the invitee the duty to exercise reasonable care to prevent his being injured on ‘the premises.’” The excerpt Plaintiff relies upon is taken out of context from a passage in the case explaining the evolution of duty in the context of premises liability. Rather, the court in Alcaraz goes on to state that the courts have since abandoned the rigid common law classifications of trespasser, licensee, and invitee. (Id. at 1249.) Additionally, cases involving businesses require both control and commercial benefit to impose liability. (Id.)

As discussed above, VSI’s lease terms prevent it from making any changes to common areas, which include the pedestrian ramp where Plaintiff fell. Plaintiff offers no other evidence demonstrating VIS ever exerted any control over the pedestrian ramp. Plaintiff thus fails to meet her burden of showing there are triable issues of material fact exist over whether VSI had control over the pedestrian ramp where she fell.

“[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244.) “The first element—the existence of a contract—requires parties capable of contracting, their consent, a lawful object, and a sufficient cause of consideration.” (J.B.B. Investment Partners Ltd. v. Fair (2019) 37 Cal.App.5th 1, 9 (citing Civ. Code § 1550).) The existence of a contract may create an express duty to indemnify. (See Campbell v. Superior Court (1996) 44 Cal.App.4th 1308, 1319.)

VSI’s evidence shows it leased the premises from VIC after the lease was assigned to VIC on May 28, 2015. (UMF No. 3.) VSI’s lease with VIC states VSI shall not have any rights to the roof or exterior walls of the building or any other buildings in the plaza. (UMF No. 5.) The lease defines the common area as all areas and facilities outside the Premises and within the exterior boundary line of the Project including parking areas, loading and unloading areas, trash areas, roadways, walkways, driveways, and landscaped areas. (UMF No. 6.) VIC retained the exclusive right to make changes to the common areas and was required to maintain the common area. (UMC Nos. 9, 12.)

“Except for Lessor’s gross negligence or willful misconduct, Lessee shall indemnify, protect, defend and hold harmless the Premises, Lessor and its agents … from and against any and all claims, loss of rents and/or damages, liens, judgments … arising out of, involving, or in connection with the use and/or occupancy of the Premises by Lessee.”

As discussed above, Plaintiff’s injuries took place on an unmarked pedestrian ramp which Plaintiff had no control over. VSI’s lease with VIC limits VSI’s obligation to indemnify VIC to injuries caused by an environment created by VSI. VSI did not create or maintain the pedestrian ramp that caused Plaintiff’s injuries. Thus, VSI is not required to indemnify VIC. VSI meets its burden of proof.

The burden shifts to VIC. VIC’s evidence shows that Plaintiff noticed goods stacked on a pedestrian walkway. (UMF No. 1.) It was inconvenient for Plaintiff to walk through the goods, which forced her to walk down the driveway. (UMF No. 1.) Plaintiff fell attempting to walk back onto the pedestrian walkway. (UMF No. 1.) VIC’s lease with VSI prohibits VSI from storing property in the common areas. (UMF No. 2.)

VIC argues that Plaintiff’s injuries arose from VSI’s use of the pedestrian walkway to store goods. VIC relies on Jackson v. Ryder Truck Rental, Inc. Liability based on misfeasance exists when the defendant is responsible for making the plaintiff’s position worse, i.e., defendant has created a risk. (Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1838.) In Jackson, a trucking company failed to repair electrical problems, causing the vehicle to break down and expose the decedent there to the risk of breaking down on the highway.

Here, VSI’s conduct placing goods in the walkway exposed Plaintiff to the risk of tripping over the goods, bumping into the goods, or other risks associated with the goods themselves. Plaintiff was injured after she tripped on a pedestrian ramp more than ten steps away from the obstruction. (Meng Depo., 21:25.) Although the goods were stored in violation of VSI’s agreement with VIC and may have exposed Plaintiff to other risks, the goods did not expose Plaintiff to the risk of tripping on a pedestrian ramp in VIC’s control.

The motion for summary judgment is granted.