Judge: Kerry Bensinger, Case: 19STCV44733, Date: 2023-05-17 Tentative Ruling
Case Number: 19STCV44733 Hearing Date: May 17, 2023 Dept: 27
Tentative Ruling
Judge Kerry Bensinger, Department 27
HEARING DATE: May
17, 2023 TRIAL
DATE: September 19, 2023
CASE: Rosa Cordova v. Garden Fresh Restaurants, LLC, et al.
CASE NO.: 19STCV44733
MOTION
FOR SUMMARY JUDGMENT
MOVING PARTY: Defendant
Macerich Management Company
RESPONDING PARTY: No opposition
I. BACKGROUND
On December 11, 2019, Plaintiff, Rosa Cordova, filed this
action against Defendant, Garden Fresh Restaurants, LLC, for negligence and
premises liability. On March 24, 2021,
Plaintiff designated Macerich Lakewood LP (erroneously named as “Lakewood Mall
Shopping Center Company”) as Doe 1, Brooke & Mack, Inc. as Doe 2, and SPLW
Properties, LTD., as Doe 3. On August
30, 2021, Plaintiff designated Construction State Service, LLC as Doe 4, and Macerich
Management Company as Doe 5
On December
8, 2022, defendant Macerich Management Company (hereinafter, “Defendant”) filed
this motion for summary judgment.
Factual Allegations
As
framed by the Complaint, on November 18, 2018, Plaintiff sustained injuries
while at the Souplantation restaurant at 4720 Candlewood St., Lakewood,
California 907212 when an employee struck her in the back and right side by brutally
opening the kitchen door with a cart full of dishes. (Complaint, ¶¶ 8, 17.)
III. LEGAL STANDARDS
A. Summary
Judgment
In reviewing a motion for summary
judgment, courts must apply a three-step analysis: “(1) identify the issues
framed by the pleadings; (2) determine whether the moving party has negated the
opponent’s claims; and (3) determine whether the opposition has demonstrated
the existence of a triable, material factual issue.” (Hinesley v.
Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)
“[T]he initial burden is always on
the moving party to make a prima facia 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 or
summary adjudication “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, or that there is a complete
defense to the cause of action.” (Code Civ. Proc., § 437c, subd.
(p)(2).) A moving defendant need not conclusively negate an element of
plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 854.)
To meet this burden of showing a
cause of action cannot be established, a defendant must show not only “that the
plaintiff does not possess needed evidence” but also that “the plaintiff
cannot reasonably obtain needed evidence.” (Aguilar, supra,
25 Cal.4th at p. 854.) It is insufficient for the defendant to merely
point out the absence of evidence. (Gaggero v. Yura (2003) 108
Cal.App.4th 884, 891.) The defendant “must also produce evidence that the
plaintiff cannot reasonably obtain evidence to support his or her claim.”
(Ibid.)¿ The supporting evidence can be in the form of affidavits,
declarations, admissions, depositions, answers to interrogatories, and matters
of which judicial notice may be taken. (Aguilar, supra, 25
Cal.4th at p. 855.)
“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.”
(Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not
merely rely on allegations or denials of its pleadings to show that a triable
issue of material fact exists, but instead, “shall set forth the specific facts
showing that a triable issue of material fact exists as to the cause of
action.” (Ibid.) “If the plaintiff cannot do so, summary
judgment should be granted.” (Avivi v. Centro Medico Urgente Medical
Center (2008) 159 Cal.App.4th 463, 467.)
B.
Negligence and Premises Liability
The elements of a cause of action for premises liability
are the same as those for negligence: duty, breach, causation, and damages.¿ (McIntyre
v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671; Civil Code, §
1714, subd. (a).)¿ Therefore, to prevail on a claim
for premises liability, Plaintiff must prove: (1) defendant owned or controlled
the subject property; (2) defendant was negligent in the use or maintenance of
the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a
substantial factor in causing plaintiff’s harm.¿ (See CACI No. 1000; Rowland
v. Christian (1968) 69 Cal.2d 108.)¿ A
substantial factor in causing harm is a factor that a reasonable person would
consider to have contributed to the harm.
It must be more than a remote or trivial factor. It does not have to be the only cause of the
harm. (CACI No. 430; Yanez v. Plummer
(2013) 221 Cal.App.4th 180, 187.)
A property owner is not the insurer of the safety of its
guests.¿ The owner’s actual or constructive knowledge of the dangerous
condition is key to establishing liability.¿ (Hall v. Rockcliff Realtors
(2013) 215 Cal.App.4th 1134, 1139-40.)
IV. JUDICIAL NOTICE
Defendants
request that the Court to take judicial notice of Plaintiff’s Complaint, Garden
Fresh’s Answer, Plaintiff’s doe amendments, Defendant’s Answer, and the Court’s
order granting Garden Fresh’s attorney’s Motion to be Relieved as Counsel. The unopposed request is GRANTED. (Evid. Code, § 452, subd. (d).)
V. DISCUSSION
This action
arises from the alleged injuries Plaintiff, Rosa Cordova, allegedly sustained
on or around November 18, 2018 when she was dining at a Souplantation
restaurant located at 4720 Candlewood Street, Lakewood, California (“Subject
Premises”). (Undisputed Material Fact
(“UMF”) 1.) Plaintiff contends she was
injured inside the restaurant when she was struck by “an employee who abruptly
opened the kitchen door with a cart full of clean dishes and striking plaintiff
in the back and right side.” (UMF 2.) Defendant, Macerich Lakewood LP, owns the
Subject Premises. (UMF 3.) Defendant Macerich Management Company,
manages the Subject Premises. (UMF 4.) Brooke & Mack Inc., named as Doe 2, is the
entity which leased the Subject Premises from Defendant Macerich Lakewood LP
and which operated the Souplantation restaurant. (UMF 5.)
At the time of the incident, the Macerich Defendants did not have
control or possession of the Subject Premises and did not maintain or operate
it. (UMF 6.) The Macerich Defendants did not employ any
individual at the Subject Premises, let alone the individual who “abruptly
opened the kitchen door with a cart full of clean dishes and striking plaintiff
in the back and right side.” (UMF 7.) Pursuant to the agreement between Defendant
Macerich Lakewood LP (landlord) and Brooke & Mack Inc./Garden Fresh
Restaurant (tenant), the tenant is to maintain the Subject Premises and have
possession of the Subject Premises during the term of lease. (UMF 8.)
With regard to Defendant Macerich Management Company, it has no interest
in the Subject Premises and merely acts as a liaison between the landlord and
tenant as it relates to the Lease Agreement.
(UMF 9.) Defendant Macerich
Management Company also does not perform any maintenance on behalf of either
the landlord or tenant. (UMF 10.) On or around February 6, 1987, Defendant
Macerich Lakewood LP (formerly Lakewood Mall Shopping Center Company) entered into
a 20-year Lease Agreement with Defendant Brooke & Mack, Inc. dba
Souplantation. The tenancy was extended on a month-to-month lease. (UMF 11.)
At the time of the Subject Incident, which occurred on or around
November 18, 2018, the Subject Premises was leased by Brooke & Mack,
Inc. (UMF 12.) The Lease Agreement expressly states that the
tenant (Brooke & Mack, Inc.) is to maintain the premises as follows:
“ARTICLE 7 REPAIRS AND MAINTENANCE Landlord shall not be obligated to make any
repairs, alterations, additions or improvements in, to or upon the Leased
Premises. Tenant at its sole expense, shall maintain the Leased Premises and
the whole thereof in a clean and sanitary condition. Without limiting the
foregoing, Tenant shall maintain and repair all walls, plate glass, sewers,
sewer connections, .drains, pipelines, sidewalks and other improvements which
may be required at any time by law to be constructed, maintained or repaired
upon said Leased Premises.” (UMF 13.) Defendants Macerich Lakewood LP nor Macerich
Management Company did not have any actual knowledge of the alleged dangerous
condition which allegedly injured Plaintiff and had no right or ability to cure
the alleged dangerous condition. (UMF
14.)
Defendant’s Arguments
Defendant argues it did not owe Plaintiff a duty of care
because Defendant did not possess or control the Subject Premises, was not
obligated to maintain the Subject Premises, and did not have actual knowledge
of any dangerous condition.
“[B]efore liability may be thrust on a landlord for a third
party’s injury due to a dangerous condition on the land, the plaintiff must
show that the landlord had actual knowledge of the dangerous condition in
question, plus the right and ability to cure the condition.” (Stone v. Center Trust Retail Properties,
Inc. 92008) 163 Cal.App.4th 608, 612, citing Mata v. Mata (2003) 105
Cal.App.4th 1121, 1131-32.)
Here, Defendant managed the Subject Premises. (UMF 3, 4.)
At the time of the incident, Defendant Brooke & Mack, Inc. (hereinafter,
“B&M”) leased the Subject Premises.
(UMF 11, 12.) Under the Lease
Agreement, Defendant was not obligated “to make any repairs, alterations,
additions or improvements in, to or upon the Leased Premises.” (UMF 13.) Nor did Defendant maintain, control, operate,
possess, repair, inspect, manage, and/or clean the Subject Premises. (UMF 6-11, 14.) Rather, B&M, as the tenant of the Subject
Premises, was obligated to maintain the Premises and to make any necessary
repairs or improvements. (UMF 13.) Nor did Defendant employ the individual who
allegedly injured Plaintiff by opening the kitchen door with a cart full of
dishes. (UMF 7.)
Based on
the foregoing, Defendant did not owe a duty of care to Plaintiff. Per the Lease Agreement, Defendant did not
maintain and could not have maintained the Subject Premises at the time of the
incident. Having so established,
Defendant further establishes that Defendant did not cause Plaintiff’s alleged
injuries. Defendant meets its initial
burden. As Plaintiff has not opposed the
motion, Plaintiff does not meet her burden to show that there is a triable
issue of material fact. Defendant is
entitled to summary judgment.
VI. CONCLUSION
The motion
for summary judgment is GRANTED.
Moving party to give notice.
Dated: May 17, 2023 ___________________________________
Kerry
Bensinger
Judge
of the Superior Court
Parties who intend to submit on this tentative must send an
email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on
the tentative as directed by the instructions provided on the court website at
www.lacourt.org. Please be advised that if you submit on the tentative
and elect not to appear at the hearing, the opposing party may nevertheless
appear at the hearing and argue the matter. Unless you receive a
submission from all other parties in the matter, you should assume that others
might appear at the hearing to argue. If the Court does not receive
emails from the parties indicating submission on this tentative ruling and
there are no appearances at the hearing, the Court may, at its discretion,
adopt the tentative as the final order or place the motion off calendar.