Judge Joel R Wohlfeil, Case 37-2022-00047882-CU-PO-CTL 2024-01-12 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2022-00047882-CU-PO-CTL, Date: 2024-01-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 11, 2024

01/12/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited PI/PD/WD - Other Summary Judgment / Summary Adjudication (Civil) 37-2022-00047882-CU-PO-CTL FLORECE VS ESCAMILLA [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Summary Judgment and/or Adjudication, 10/27/2023

The Motion (ROA # 42) of Defendant PPDW, LLC ('Defendant') for summary judgment in favor of Defendant and against Plaintiffs CAROLINE SAN MIGUEL FLORECE and ESTATE OF ADELAIDA SAN MIGUEL, by and through her successor-in-interest Caroline San Miguel Florece ('Plaintiffs'), is DENIED.

Plaintiffs' evidentiary objections (ROA # 56) are OVERRULED IN PART and SUSTAINED IN PART.

The objections are OVERRULED except as noted: the third and fifth objections are SUSTAINED.

Defendant's evidentiary objections (ROA # 60) are OVERRULED.

Although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe. Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1205.

Premises liability is grounded in the possession of the premises and the attendant right to control and manage the premises, and as a result possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act. Kesner v. Superior Court (2016) 1 Cal. 5th 1132, 1158.

Property owners have a duty to maintain property in their possession and control in a reasonably safe condition. Lawrence v. La Jolla Beach & Tennis Club, Inc. (2014) 231 Cal. App. 4th 11, 22.

The existence of duty is a question of law to be decided by the Court. Id. Although the factors to be weighed in determining the scope of a defendant's duty will vary in each case, the two primary considerations are the foreseeability of the harm and the burden on Defendant of protecting against the harm. Id. at 23, 24.

In cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. Id. at 24.

On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required. Id. In addition to a duty, liability is dependent on causation. Plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of Defendant was a Calendar No.: Event ID: TENTATIVE RULINGS

3030466 12 CASE NUMBER: CASE TITLE: FLORECE VS ESCAMILLA [IMAGED] 37-2022-00047882-CU-PO-CTL cause in fact of the result. Ortega v. Kmart Corp., supra at 1206.

A mere possibility of such causation is not enough. Id. When the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the Court to direct a verdict for Defendant. Id. at 1205, 1206.

Defendant's negligent conduct may combine with another factor to cause harm. Yanez v. Plummer (2013) 221 Cal. App. 4th 180, 187.

If Defendant's negligence was a substantial factor in causing Plaintiff's harm, then Defendant is responsible for the harm. Id. Defendant cannot avoid responsibility just because some other person, condition or event was also a substantial factor in causing Plaintiff's harm. Id. However, conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct. Id. The Court has rejected claims of 'abstract negligence' pertaining to the lighting and maintenance of property where no connection to the alleged injuries was shown. Saelzler v. Advanced Group 400 (2001) 25 Cal. 4th 763, 773.

Assuming Defendant owed and breached a duty of care to Plaintiff, she nonetheless cannot prevail unless she shows the breach bore a causal connection to her injury. Id. Plaintiff must establish, by nonspeculative evidence, some actual causal link between Plaintiff's injury and Defendant's failure to provide adequate security measures. Id. at 774.

In this case, material disputed facts exist regarding whether the scope of Defendant's duty included the safety of pedestrians walking through the alley on the west side of the Michaels store where the accident occurred. The disputed facts demonstrate the foreseeability that trucks and cars will use this alley. Two driveways exist from Civic Center Drive into the alley permitting access. A loading dock and parking spaces are located in the alley inviting access by cars and trucks.

The disputed facts also demonstrate the foreseeability that pedestrians will use the alley on the west side of the Michaels store where the accident occurred. There are many apartments located directly to the west and southwest of this location. There is a sidewalk leading north from Civic Center Drive, running parallel to the subject alley and west side of the Michaels store, and terminating at the alley just in front of the subject loading dock. There is a second sidewalk starting from the alley just in front of the subject loading dock, and leading into the shopping center around the northwest side of the Michaels store. These sidewalks invite nearby residents use of the back alley as an entry point into the shopping center.

Material disputed facts exist regarding the relatively minimal burden on Defendant of protecting against the harm of pedestrian versus vehicle accidents. There is evidence that maintaining a marked crosswalk and/or warning signs would have been feasible given that Defendant already takes these measures at other locations within the shopping center.

The casual connection between the breach of this duty and the death of the decedent is a closer call.

The decedent's path of travel (as seen in the dashcam video) indicates she was not coming from the sidewalk leading north from Civic Center Drive and running parallel to the alley and west side of the Michaels store. Instead, it appears likely she entered the alley via one of the driveways. However, it does appear she was walking in the direction of the sidewalk leading into the shopping center around the northwest side of the Michaels store.

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3030466 12 CASE NUMBER: CASE TITLE: FLORECE VS ESCAMILLA [IMAGED] 37-2022-00047882-CU-PO-CTL Ultimately, the deposition testimony of Defendant Escamilla (the truck driver) results in disputed material facts supporting the element of causation.

At page 130, he admits he never saw the decedent until after the accident.

At page 151, he states his belief that the subject area was not a pedestrian walkway because there were no 'lines ... showing ... a walking place.' At page 170, he was asked whether he would have done something differently if he had been aware of the existence of a pedestrian walkway in the alley. His response was 'maybe.' He is next asked whether he '[w]ould have paid more attention to see if there was anyone walking in that area because there was a pedestrian walkway nearby?' His answer: 'Yeah. I would say yes. Okay. Yes.' Although he backs away from this conviction in later testimony (pages 172 and 221), this is sufficient to create a disputed fact. It is possible to conclude from this testimony that the failure to provide a marked crosswalk or other warning signage was a substantial factor in causing the incident.

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