Judge: Jon R. Takasugi, Case: 21STCV19551, Date: 2023-04-11 Tentative Ruling

Case Number: 21STCV19551    Hearing Date: April 11, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Defendant Pacific West Management’s motion for summary judgment is GRANTED.

On May 24, 2021, Plaintiff Leslie Lawrence brought this premises liability action against Defendants The Vons Companies, Inc. (“Vons”) and Pacific West Management (“Pacific West”). Pacific West cross-complained against Vons but later requested dismissal without prejudice.

            Now, Pacific West moves for summary judgment against Plaintiff on grounds it had no duty to prevent Plaintiff from injuring herself on premises Pacific West did not own, lease, occupy, or control.    

Legal Standard

“A party may move for summary judgment in any action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc. § 437c(a).) The motion shall be granted if there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (Id. § 437c(c).)

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial.  (Aguilar v. Atlantic 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.)

As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden by presenting facts to negate an essential element or to establish a defense.  (Code Civ. Proc. § 437c(p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)  The moving party’s burden on summary judgment “is more properly one of persuasion rather than proof, since he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 fn.11, original italics.) 

If the defendant meets this burden, then the burden of production shifts to the plaintiff to establish the existence of a triable issue of material fact. (Code Civ. Proc. § 437c(p)(2); Donohue v. AMN Services, LLC (2018) 29 Cal.App.5th 1068, 1077.)  “[T]he plaintiff must produce ‘substantial responsive evidence.’  [Citation.]”  (Miller v. Fortune Commercial Corp. (2017) 15 Cal.App.5th 214, 221.)  However, “the role of the court in summary judgment proceedings is not to weigh the evidence, but to determine whether there exists a triable issue of material fact.” (Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal. App. 4th 1306, 1342.)

Factual Background

Plaintiff’s complaint alleges the following: On January 26, 2021, Plaintiff was walking to the entrance of the Vons grocery store at 481 Old Mammoth Rd, Mammoth Lakes, CA 93546. Near the store entrance, Plaintiff slipped and fell on an area that was icy and was injured. The area where Plaintiff fell and was injured was owned, leased, occupied and/or controlled by Defendants. Defendants negligently maintained the area where Plaintiff slipped, and this negligence was a substantial factor in causing Plaintiff's injuries.

Evidentiary Objections

Plaintiff raises 22 objections.

Objections 1-2, and 9-22 are overruled.

Objections 3-8 are sustained. Answers to interrogatories may only be used against the responding party. (Code Civ. Proc. § 2030.410.) Here, Pacific West has offered interrogatories propounded on Vons but this motion is for summary judgment against Plaintiff.

Pacific West objects to the declaration of Stephen J. Donell in its entirety. The objection is overruled. Pacific West also objects to individual paragraphs within the Donell declaration.

Objections to paragraphs 7-9 are sustained. Donell is merely interpreting the ECR and thus the best evidence rule applies. (Evid. Code §§ 412 and 1520 et seq.)

Objections to paragraphs 10-12 are overruled.

Discussion

Pacific West moves for summary judgment, arguing it had no duty to Plaintiff because it did not own, lease, occupy, or control the sidewalk outside Vons where Plaintiff fell.

In opposition, Plaintiff argues Pacific West fails to meet its burden of producing admissible evidence showing it did not own, lease, or occupy Vons’s sidewalk. Plaintiff also argues Pacific West fails to show it did not maintain or control Vons’s sidewalk. Even if Pacific West had met its initial burden, Plaintiff contends there are triable issues of fact as to whether Pacific West had control over Vons’s sidewalk or otherwise took actions that made Vons’s sidewalk more dangerous.

Plaintiff also raises procedural arguments. As threshold matters, the Court will consider these arguments first before analyzing whether there are triable issues of fact as to whether Pacific West had control of the sidewalk where Plaintiff allegedly fell.

Plaintiff argues Pacific West’s Separate Statement of Undisputed Material Facts (“UMF”) is improper for several reasons: First, Pacific West’s UMF cites to Vons’s discovery responses, but Vons’s discovery responses can’t be used in a motion for summary judgment against Plaintiff. As noted above, the Court has sustained Plaintiff’s objections to Vons’s interrogatory responses offered by Pacific West. But the fact that Pacific West’s UMF cites to inadmissible evidence does not make the UMF improper.

Second, Plaintiff points out the UMF does not separately identify each cause of action and issue of duty. However, this motion only addresses the issue of duty and Plaintiff only asserts a single cause of action. Thus, separating causes of action and issues is not necessary. Third, Plaintiff argues Pacific West’s UMF states legal conclusions and not facts. The Court disagrees. Fourth, Plaintiff points out the UMF does not address all the material allegations of Plaintiff’s complaint—that the UMF does not address whether the Vons sidewalk was slippery for reasons other than ice, whether Pacific West “occupied” the Vons sidewalk, whether Pacific West was negligent with its “use” of the Vons sidewalk, and whether Plaintiff was injured because of the accident. Whether Plaintiff was injured is not relevant to duty. The Court finds the rest of the omissions to be semantic rather than substantive.

As a final threshold matter, Plaintiff argues Pacific West should not be able to prosecute this motion because it treats Pacific West and Vons as adversarial, but the two parties are now represented by the same counsel. Indeed, Pacific West dismissed its cross-complaint against Vons after this motion was filed, and the two Defendants are now represented by the same counsel. However, Plaintiff fails to explain how this affects her rights, as any conflict would be between Pacific West and Vons. With respect to the issues raised by this motion, the parties’ positions have remained consistent.

With the threshold issues resolved, the Court will now determine whether Pacific West has met its initial burden of showing it owed no duty to Plaintiff.

I.                   Pacific West Fails to Meet its Burden

The essential elements for both negligence and premises liability are duty, breach, causation, and damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)

“By inviting the public to its store, an owner or possessor has the duty ‘to exercise ordinary care and prudence to keep the aisles and passageways of the premises in and through which, by their location and arrangement, a customer in making purchases is induced to go, in a reasonably safe condition so as not unnecessarily to expose the customer to danger or accident.’ [Citations.] This duty extends to all parts of the premises over which the business proprietor has control. [Citation.] Irrespective of control, it also extends to all property the proprietor impliedly adopts and invites others to use. [Citation.] As a general matter, a business invites its customers to all parts of the store where its customers would be expected to go. [Citation.]” (Hassaine v. Club Demonstration Services, Inc. (2022) 77 Cal.App.5th 843, 852, citing Danisan v. Cardinal Grocery Stores, 155 Cal.App.2d 833.)

In Danisan, a butcher, a dry goods grocer, and a produce vendor operated within an enclosed market. (Danisan, 155 Cal.App.2d at 835.) Each had a lease which covered a particular area of the building and provided among other things that the lessee should have ‘... the right of ingress and egress in, to, upon, through and over all parts and portions of said property as may be necessary to carry on and operate ...’ (Ibid.) “[T]he court reasoned that by jointly operating the premises, all three vendors ‘intended to and did invite the public generally to patronize’ the entire market… Viewing the record, it was apparent that each vendor invited the general public to patronize the market, and their invitation ‘was not limited to the area occupied by any one defendant to the exclusion of others, but to the contrary was an invitation by all defendants and extended to all portions of the premises where plaintiff would likely shop.’” (Hassaine, 77 Cal.App.5th at 855, citing Danisan, 155 Cal.App.2d at 838.)

Next, “the Danisan court addressed the defendants' claim that they owed the plaintiff no legal duty because the injury happened in an area they had no right to enter or clean. Rejecting this contention as well, the court reasoned that the defendants' lack of ownership or right to maintain the property was important but not conclusive. Where a business expressly or impliedly adopts the property of another and invites others to use it, that business ‘owes to such invitee a duty to exercise reasonable care to see that the property is safe.’” (Hassaine, 77 Cal.App.5th at 855, citing Danisan, 155 Cal.App.2d at 838.)

Here, the “entire market” where a plaintiff would likely shop includes Vons and the Minaret Village Shopping Center owned and operated by Pacific West, as the two parties share a common walkway and parking lot. Pacific West argues that Vons—not Pacific West—owns the Vons store and sidewalk outside the store, and further that Vons admits it was contractually obligated to maintain or control the Vons sidewalk where Plaintiff allegedly fell. The inquiry, however, does not end there. As explained by the Hassaine Court, “[t]here is no legal basis to permit two participants in a business enterprise and potential defendants—here, CDS and Costco—to contractually limit between themselves the scope of the tort duty that one of them owes to a third-party plaintiff/victim who was not a party to the contract.” (Hassaine, 77 Cal.App.5th at 854.) Offering evidence of lack of ownership and control is not enough. Like the defendants in Danisan and Hassaine, Pacific West must offer evidence that it did not impliedly adopt the Vons sidewalk and invite others to use it.

Pacific West fails to meet this burden. The only direct, admissible evidence Pacific West offers is the declaration of its Asset Manager, who states: “The sidewalk in front of the Vons store, bordered by bollards, located at 481 Old Mammoth Rd, Mammoth Lakes, CA 93546, is not, nor has it ever been, maintained, controlled, owned or leased by PACIFIC WEST.” (NOL, Ex. G [Grunauer Decl., ¶ 5].) This single sentence does not establish that Pacific West—by admittedly owning, maintaining, and controlling adjacent property within the same shopping center—did not impliedly adopt the Vons sidewalk or invite customers like Plaintiff to use the Vons sidewalk.

The rest of the evidence offered by Pacific West is either inadmissible or inconclusive. Pacific West offers interrogatory answers from Vons stating that Vons controlled the sidewalk in question. (NOL, Ex. H [Vons’ R. to SROGs Nos. 1, 2, 12].) As noted above, these answers are inadmissible. Pacific West offers a declaration from the President of a snow removal company who states her contract with Pacific West did not provide for removing snow from the sidewalk in front of the Vons store. (NOL, Ex. M [Bardfield Decl., ¶ 6].) The fact that Pacific West did not contract with a particular vender to remove snow from the sidewalk in front of Vons does not equate to it not having a legal duty to ensure the walkway was safe. Finally, the various deposition transcripts indicate—at best—Vons employees would attempt to de-ice the sidewalk from time to time. (NOL, Exhibit O [Vollmer Depo., pgs. 184:11-25; 185:10-186:16; 189:16-190:16].) Again, this does not establish that Pacific West did not have a duty to keep the sidewalk safe.

Pacific West has failed to offer evidence that by owning, maintaining, and/or controlling the walkways, parking lot, and other buildings in the Minaret Village Shopping Center it did not impliedly adopt or invite its customers to use the Vons sidewalk. Thus, Pacific West has failed to show that the element of duty cannot be established.

II.               Plaintiff Meets Her Burden

Even if Pacific West had met its burden, Plaintiff has shown a triable issue of material fact exists.

“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 physical area encompassed by the term ‘the premises' does not, however, coincide with the area to which the invitor possesses a title or a lease. The ‘premises' may be less or greater than the invitor's property. The premises may include such means of ingress and egress as a customer may reasonably be expected to use. The crucial element is control.” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1158, emphasis in original.)

Assuming, arguendo, that Pacific West did not impliedly adopt or invite its customers to use the Vons sidewalk, Plaintiff has nonetheless offered evidence that Pacific West had control over the sidewalk. The original ECR Agreement between Defendants’ predecessors in interest grants easements for walkways, defines walkways as common areas, and requires both Defendants to maintain the common areas. (Plaintiff’s NOL, Ex. 14 [ECR Agreement ¶¶ 3, 4].) Plaintiff also offers photos showing Pacific West’s snow removal contractor plowing snow immediately adjacent to the Vons sidewalk. (Plaintiff’s NOL, Ex. 17 [Email from Snow Removal Subcontractor].) The photos indicate that the plow would cause snow to bank on the Vons sidewalk. (Ibid.) Moreover, Vons’ PMK testified in his deposition that Pacific West has cleared snow and ice from the sidewalk in front Vons in the past. (Plaintiff’s NOL, Ex. 16 [Vons PMK Depo., pg. 137:25-138:1].) This is enough to create a triable issue of material fact.

Accordingly, summary judgment is denied. 

It is so ordered.

Dated: April     , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

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