Judge Kerry Bensinger, Case 20STCV27533 2023-02-10 Tentative Ruling

On May 8, 2020, Plaintiff Linda Cohen (“Plaintiff”), filed this action against Defendant American Multi-Cinema, Inc. (“Defendant”). The Complaint alleges that Plaintiff was walking up or near the steps leading to her seat at the subject premises when she slipped on water/similar substance on the floor and fell. The Complaint asserts causes of action for general negligence and premises liability.

On October 12, 2022, Defendant filed a motion for summary judgment, or in the alternative, summary adjudication. On December 7, 2022, the court continued the motion for summary judgment hearing pursuant to Plaintiff’s ex parte application for a continuance.

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.)

Defendant requests that the Court take judicial notice of its own file of this case. The Court grants this request pursuant to Evidence Code section 452(d).

Defendant argues that summary judgment should be granted because Plaintiff cannot establish that Defendant had notice of any dangerous condition, Plaintiff does not have evidence of the dangerous condition at issue, and Plaintiff cannot establish causation.

As framed by the Complaint, Plaintiff’s allegation is that she “was walking up and/or near the steps leading to her seat at the subject premises when suddenly and without warning Plaintiff slipped on water and/or similar substance on the floor and fell violently to the floor.” (Complaint ¶ 8.) Plaintiff alleges that Defendants should have known that there was a dangerous condition which caused Plaintiff’s injuries and Defendant failed to warn or remedy the dangerous condition. (Complaint ¶¶ 10,16.)

The elements of a negligence or premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “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; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) “‘Liability is particularly appropriate where the landowner has actual knowledge of the danger, e.g., where he has created the condition.’ [Citation.]” (Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294, 1304.)

While an owner of premises is not an insurer of the safety of its patrons, the owner still owes them a duty to exercise reasonable care in keeping the premises reasonably safe. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) For example, a “store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.” (Ibid.) The exercise of ordinary care may require the owner to take greater precautions or to make more frequent inspections, but ultimately, the owner must use the care required of a reasonably prudent person acting under the same circumstances. (Ibid.)

To establish liability for negligence, “[t]here must be some evidence . . . to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.” (Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, 829; Ortega, supra, 26 Cal.4th at p. 1206 [the owner must have had actual or constructive knowledge of the dangerous condition or have had the ability, through the exercise of ordinary care, to discover it, and sufficient time to correct it].) The plaintiff has the burden because “shifting the burden to defendant would, contrary to existing negligence law, permit an inference of negligence to be drawn against the owner based solely on the fact that the fall or accident occurred.” (Ibid.)

Defendant puts forward the following evidence in support of its motion for summary judgment. Defendant presents the Declaration of Kathleen Camacho, the manager at the time of the incident. Ms. Camacho states that she helped Plaintiff up after the fall, and checked the condition of the location where Plaintiff fell. (Camacho Decl. ¶ 6.) She states: “the carpeted stairs were clean, with no spills. The stairs were in good repair, with nothing, ‘sticking out.’ There was no debris coming out of/on the steps. I identified nothing at the time of Plaintiff’s claimed fall near the location of Plaintiff’s claimed fall that would have caused her to trip. (Camacho Decl. ¶ 6.) She states that she filled out an incident report and took photographs to document the condition of the steps. (Camacho Decl. ¶ 7; Mendoza Decl. Exhibit C.)

Defendant also presents the Guest Incident Report from the day of the fall, which Ms. Camacho states was filled out by Plaintiff’s friend which states that “guest stated her foot got caught on something which caused her to trip.” (Mendoza Decl. Exhibit C.) Along with this, Defendant presents AMC’s Incident Report which states that “Guest fell in theater 5 going up the stairs around the g/h row…Guest was too shaken up to fill incident report but guest stated her foot got caught on something which caused her to trip.” “The stairway was clean of debris, and manager on duty checked the four steps around the G and H row and found that none of the steps had any type of debris coming out or on top of steps.” (Mendoza Decl. Exhibit D.)

Additionally, Defendant presents photographs of the subject steps on the day of the incident with the incident report. These photographs show no clear or obvious dangerous condition or wet substance. (Mendoza Decl. Exhibit D.)

This evidence meets Defendant’s burden by showing that there was no dangerous condition and that, if there was a dangerous condition, Defendant did not have notice of the condition and could not have had notice because there was no visible danger. Defendant has shifted the burden to Plaintiff to raise a triable issue of material fact as to whether there was a dangerous condition that caused Plaintiff’s injury, and that Defendant caused or was on notice of this condition. However, Plaintiff has not opposed this motion. As such, Plaintiff has not met its burden.

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.

Hon. Kerry Bensinger

Judge of the Superior Court