Judge: Jill Feeney, Case: 20STCV21105, Date: 2023-03-07 Tentative Ruling

Case Number: 20STCV21105    Hearing Date: March 7, 2023    Dept: 30

Department 30, Spring Street Courthouse
March 7, 2023

Motion for Summary Judgment filed by Defendant Gelson’s Markets


The motion is granted.

Moving party to serve and electronically submit a proposed judgment within 20 days.

Moving party to provide notice and to file proof of service of such notice within five court days after the date of this order.


This is an action for premises liability arising from a vehicle collision which took place in June 2018. Plaintiff John Kirby filed his Complaint against Defendant Gelson’s Markets on June 4, 2020.

Defendant filed its motion for summary judgment on August 19, 2021


Moving Arguments

Defendant moves for summary judgment on the grounds that Defendant had no duty to Plaintiff because the wrongful acts of the third party driver who struck Plaintiff were not foreseeable.

Opposing Arguments

Judicial Notice

Defendant requests that the Court take judicial notice of (1) the Complaint for the case 19STCV08606, the prior lawsuit between Plaintiff and the driver involved in the subject collision, (2) the Application for Determination of Good Faith Settlement and the Order determining settlement to be made in good faith in 19STCV08606, (3) the Request for Dismissal in 19STCV08606.

Under California Evidence Code section 453, the Court shall take judicial notice of any matter specified in section 452 if a party requests it and (a) gives each adverse party sufficient notice of the request to enable such adverse party to prepare to meet the request and (b) furnishes the court with sufficient information to enable it to take judicial notice of the matter. Under California Evidence Code section 452, the Court may take judicial notice, among other things, of official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States and facts, court records, and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. (§ 452(c), (d), (h).) The Court can take judicial notice of the official acts of a state including records, orders, and reports of its administrative agencies. (Rodas v. Spiegel (2001) 87 Cal. App. 4th 513, 518.) However, the court may only judicially notice the existence of the record, not that its contents are the truth. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565. 

Here, the requests are granted as to the existence of these records.

Legal Standard

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).) 


Defendant moves for summary judgment on the grounds that Defendant had no duty to Plaintiff because the wrongful acts of the third party driver who struck Plaintiff were not foreseeable.

The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm.  (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for [customers’] their use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.) The existence and scope of a property owner’s duty are legal questions for the court. (Annocki, supra, 232 Cal.App.4th  at p. 36.) 

A landowner’s liability for injuries to person on the property depends on the balancing of a number of factors, particularly the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant, and the consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.  (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1145.)  “‘[A] duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated.’”  (Sakai v. Massco Ivestments, LLC (2018) 20 Cal.App.5th 1178, 1187-88.) 

Here, Plaintiff’s Complaint alleges that on June 9, 2018, he was a pedestrian in the Gelson’s Market parking lot in Sherman Oaks, California when he was struck and run over by a vehicle driven by Felice Farber. (Compl., p. 4.) Plaintiff alleges that Defendant Gelson’s Market negligently designed the parking lot with improper traffic signage and improper pedestrian protections, creating a dangerous condition that caused Plaintiff’s injuries. (Id.)
Defendant argues that it had no duty to Plaintiff because the actions of a third party, Farber, were not foreseeable. Defendant argues that the act injuring Plaintiff was not sufficiently likely and therefore not foreseeable. Defendant cites Jefferson v. Qwik Korner Market, Inc. (1994) 28 Cal.App.4th 990. Jefferson involved a vehicle-pedestrian collision where the defendant accidentally accelerated his vehicle, jumping parking blocks and the curb and injuring the plaintiff. The court there ruled that the accident was not sufficiently likely to occur because the design and construction of the parking lot met or exceeded city codes and regulations and there had been no previous incidents of vehicles striking pedestrians at the market. An act of a third party is sufficiently likely to occur in situations where a business provides no protection whatsoever from encroaching vehicles, has knowledge of prior similar incidents, or where patrons were required to await service by standing adjacent to a parking lot or driveway. (Jefferson v. Qwik Korner Market, Inc. (1994) 28 Cal.App.4th 990, 995.)

Here, Defendant’s evidence shows that the subject collision took place in the parking lot at a corner to the left of the entrance to the market. (Exhibits, Exh. 10, Figure 1.) Stills from the surveillance footage of the incident show that Farber struck Plaintiff just in front of a yellow speed hump in front of the market. (Young Decl., Exh. B.) Farber continued to drive over Plaintiff before striking a light pole. (Young Decl., ¶5.) 

Defendant’s expert, mechanical engineer Cole R. Young, testifies that Farber had 5.5 seconds and 15.2 feet to stop her vehicle from the moment that she perceived Plaintiff as a hazard. (Young Decl., ¶14.) Nothing in the parking lot obscured the visual line of sight between Farber and Plaintiff up to the time of the impact. (Id.) Because it only would have taken 1.8 seconds to bring Faber’s Camry to a complete stop, Farber had sufficient time to stop her vehicle from the moment she perceived Plaintiff. (Id.)

Another expert, civil engineer Joseph A. Litchfield, testifies that the design of the parking lot met the requirements of local municipal codes. (Litchfield Decl., ¶9.) The were no visual obstructions in the path of Farber’s vehicle and the parking lot was in good condition. (Id., ¶11.) There were also no reports of other accidents in the parking lot. (Id., ¶13.) The layout of the parking lot is consistent with generally accepted standards of parking lot design and construction. (Id., ¶14.)

Farber also testified at deposition that her vision was not impaired by sunlight, there were no obstructions to her windshield impacting visibility, there was nothing unique about the parking lot, and she did not feel like she had a lot to deal with while navigating the parking lot. (UMF No.31.) Defendant’s discovery responses state that Defendant has not received any reports of any previous accidents in the parking lot involving the same or similar circumstances. (UMF No. 32.)

The evidence shows that the design of the parking lot conformed with municipal codes and generally accepted safety standards. There were no prior similar accidents in the parking lot. The evidence is sufficient to show that there was no connection between Defendant’s conduct in designing and maintaining the parking lot and Plaintiff’s injury. It is reasonable to infer that the accident of the type that happened here was not sufficiently likely to occur and that Farber’s actions were not foreseeable. The video surveillance of the incident clearly shows Farber driving through an unobstructed parking lot in broad daylight and simply running over Plaintiff. Farber did not stop when she initially hit Plaintiff, but simply drove straight over him. Defendant meets its burden of showing there are no triable issues of material fact over whether the subject collision was foreseeable. 

Plaintiff did not oppose this motion and thus fails to meet his burden of proof. Summary judgment is granted.