Judge Lee S. Arian, Case Number: 21STCV34766, Date: 2024-01-08 Tentative Ruling

This is a premises liability action. On September 21, 2021, Plaintiff Mark Jablonski (“Plaintiff”) filed this action against Defendants Saticoy Plaza, LLC, Ralphs Grocery Company (“Ralphs”), and Does 1 to 50, alleging causes of action for general negligence and premises liability.

On November 3, 2023, Ralphs filed the instant motion for summary judgment, or in the alternative, summary adjudication. On January 4, 2024, Plaintiff opposed the motion. On January 12, 2024, Ralphs replied.

On February 2, 2020, Plaintiff drove himself and his adult daughter, Sara Jablonski, to Ralph’s Grocery Store, located at 17250 Saticoy Street, Lake Balboa, CA 91406, to purchase milk and ice cream. (UMF Nos. 1-3.) They entered the store and made their purchases. (UMF No. 3.) They then started back to the car with the groceries. (UMF No. 6.) While walking back to his car, Plaintiff slipped and fell; he is “pretty sure” he fell on the white arrow painted on the asphalt in the store’s parking lot. (UMF Nos. 6, 7: Jablonski Depo at 35:5-9.) He has presented no specific evidence that he fell on anything else. It had been raining prior to Plaintiff’s fall and was drizzling when he returned to the car; the parking lot was wet. (UMF Nos. 5, 14.) While he contends he saw others slip and falls when he was on the ground after his fall, Plaintiff has no information of anyone notifying Ralphs or anyone else at the property that there was a dangerous condition at the area of the arrow.

At the time of the loss, Nass, Inc. Management, LLC managed the Saticoy parking lot. They employed both a parking lot porter and a security company to maintain the lot. (UMF Nos. 20-22, 27-28). The parking lot porter worked 8 hours a day from Monday through Saturday. (UMF No. 20). As part of his duties on the Premises, the porter sweeps and blows the lot every day. (UMF No. 22) The porter also collects trash, cleans spills and debris, prunes bushes and trees, checks the lighting, and tends to any other tasks to keep the lot in good condition. (UMF No. 21, 22) He performed his regular maintenance duties on the date of the accident without incident and without complaint of issues related to the parking lot. (UMF Nos. 23-25) In addition, Post Alarm Systems and Patrol Services drives through the lot on an hourly basis to monitor the lot 24 hours a day. (UMF No. 27, 28) Ralphs, Post and the porter did not report any issues in the parking lot on the day of the fall prior to the fall. (UMF nos. 36, 38.) Nor did Ralphs have any notice of a dangerous condition prior to the fall. See Murillo and Moradian Declarations.

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.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 381-382.)

As to each claim as framed by the complaint (see Hutton v. Fid. Nat’l Title Co. (2013) 213 Cal App. 4^th 486, 493), the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Code Civ. Proc., § 437c, subd. (p)(2); Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

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 that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Ralphs requests the Court to take judicial notice of the operative Complaint, which the Court can do by taking judicial notice of its own records. (Evid. Code § 452, subd. (d); Dwan v. Dixon (1963) 216 Cal.App.2d 260, 265.) However, the Court takes judicial notice of the Complaint only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)

Plaintiff’s opposition is 19 pages long; with exhibits, it is 1528 pages long. It contains no table of contents or table of authorities, as is required under California Rules of Court, rule 3.1113, subdivision (f). (Cal. Rules of Court, rule 3.1113, subd. (f).) Further, though not required under the Rules, it contains no bookmarks or reasonable means of navigating through the 1528 pages. Plaintiff’s references to the exhibits do not contain page numbers or any other means to make it easy for the court to navigate through the 1528 pages to find the purported point that Plaintiff would like the Court to consider. Nonetheless, the Court exercises its discretion to still consider Plaintiff’s opposition, but admonishes Plaintiff to comply with the California Rules of Court going forward, as well as simple courtesy toward a reviewing court, i.e., cite to specific page numbers within 1500+ pages of an exhibit.

“A store owner is not the insurer of its patrons' personal safety, but does have a duty to exercise reasonable care to keep the premises reasonably safe for patrons. [Citation.] This includes a duty to keep the floors safe for patrons' use. [Citation.] To establish an owner's liability for negligence, the plaintiff must prove duty, breach, causation, and damages. [Citation.]” (Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035.)

Ralphs moves for summary judgment, or alternatively summary adjudication, on the grounds that Plaintiff’s causes of action for Premises Liability and Negligence fail as a matter of law.[1] Ralphs contends that it owed no duty to Plaintiff because there was no dangerous condition and, assuming for the sake of argument that a dangerous condition existed, Ralphs did not have notice of that dangerous condition and the condition was open and obvious. Further, it contends it did not cause Plaintiff’s injuries.

A dangerous condition for purposes of premises liability is a condition on the property that creates an unreasonable risk of harm. (See CACI 1003; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.)

Ralphs contends there is no evidence of a dangerous condition because the arrow on the asphalt where Plaintiff allegedly slipped and fell was appropriately slip resistant and because, with the exception of the arrow itself and rainwater, Plaintiff is unable to identify a slippery substance on that arrow. (UMF 9-11.) Ralphs further contends that Plaintiff: (1) fails to provide any information regarding physical deficiencies of the parking lot that might have caused him to slip, (2) cannot identify any sort of substance on the ground where he allegedly slipped, and (3) is not even sure where he slipped. (UMF 7-12.)

The Court finds Ralphs has established the absence of a triable issue of material fact as to whether the arrow itself constituted a dangerous condition and further sufficiently established that no other known “dangerous condition” existed at the location of the fall.[2] Thus, on that issue, Ralphs has met its initial burden.

Although the owner's lack of knowledge is not a defense, ‘[t]o impose liability for injuries suffered by an invitee due to [a] defective condition of the premises, the owner or occupier ‘must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises....'’ [Citation.]

Courts have also held that where the plaintiff relies on the failure to correct a dangerous condition to prove the owner's negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it. [Citation.]

Ralphs contends it is undisputed that it did not know of any alleged dangerous condition until the incident had already occurred. More specifically, Ralphs contends Plaintiff cannot provide evidence of any claims or complaints regarding the arrow in the parking lot where Plaintiff fell and no notice of anyone else slipping and falling before his own fall. (UMF 16-17.)

The Court finds Ralphs has established the absence of a triable issue of material fact on these grounds. Nothing in the evidence indicates that Ralphs was given notice of people like Plaintiff slipping in the parking lot at the time of the incident, nor does there appear to be evidence that this had been happening before Plaintiff slipped and fell. (See UMF 16-17, 33-36.) The burden now shifts to Plaintiff to establish the existence of a triable issue of material fact.

Plaintiff presents expert testimony to meet its burden that the painted arrow presented a dangerous condition. That expert made measurements of the slip resistance of the painted arrow and determined it to be insufficient. On this basis, the Court finds that a triable issue of fact exists.[3]

The only evidence from Plaintiff of any other falling incidents in the parking lot is testimony from Plaintiff that he saw someone fall after he did. (See PAMF 6.) There is no evidence of prior notice.

The Court finds Plaintiff has not established the existence of a triable issue of material fact. Plaintiff’s contention that he saw two other people slip in the parking lot while he was lying on the ground necessarily occurred after Plaintiff himself slipped and fell. (UMF 16-17.) At most, it is further evidence of the slippery conditions at the time of the incident, but it does not show that Ralphs had notice of the condition when Plaintiff slipped and fell or that Ralphs had enough time to correct the condition before Plaintiff slipped and fell. The Court further notes that Plaintiff’s opposition does not otherwise address the issue regarding Ralphs’ lack of notice, nor does Plaintiff proffer any additional material facts regarding the issue of Ralphs’ lack of notice.

Accordingly, the Court finds Plaintiff’s claim for premises liability fails as a matter of law.

Premises liability is a type of negligence. (See Civ. Code § 1714, subd. (a); Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) Given the Court’s determination that Plaintiff’s claim for premises liability fails as a matter of law due to insufficient notice to Ralphs of the dangerous condition at the time of the incident, the same determination applies here. Accordingly, the Court finds Plaintiff’s claim for general negligence also fails as a matter of law.

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. Lee S. Arian

Judge of the Superior Court

Whether a duty should be imposed on a defendant depends on factors set forth in Rowland v. Christian (1968) 69 Cal.2d 108, 112–113, 70 Cal.Rptr. 97, 443 P.2d 561. The factors include foreseeability of harm plus the burden on the defendant and the consequences to the community of imposing a duty. Foreseeability is a question of law, and it is “typically absent when a dangerous condition is open and obvious. [Citation.]” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446–447, 221 Cal.Rptr.3d 701 (Jacobs).) “ ‘Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.’ [Citation.] In that situation, owners and possessors of land are entitled to assume others will ‘perceive the obvious’ and take action to avoid the dangerous condition. [Citation.]” (Id. at p. 447, 221 Cal.Rptr.3d 701.)

“An exception to this general rule exists when ‘it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it).’ [Citation.] In other words, while the obviousness of the condition and its dangerousness may obviate the landowner's duty to remedy or warn of the condition in some situations, such obviousness will not negate a duty of care when it is foreseeable that, because of necessity or other circumstances, a person may choose to encounter the condition.” (Jacobs, supra, 14 Cal.App.5th at p. 447, 221 Cal.Rptr.3d 701.)

But the obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify it. The modern and controlling law on this subject is that “although the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability....”

Ralphs contends that both he painted arrow on the ground and the wet condition of the ground due to the rain on the date of the incident was an open and obvious condition. Plaintiff was aware that the asphalt was wet at the time of the incident. (UMF 5, 14.)

The Court finds that Ralphs has met its initial burden to establish the absence of a triable issue of material fact. While Ralphs’ proffered evidence shows Plaintiff was aware of the wet ground at the time of the incident, that does not necessarily vindicate Ralphs here. At most, it obviated Ralphs’ duty to warn Plaintiff of the condition. (See Martinez, supra, 121 Cal.App.4th at p. 1184.) It does not address the foreseeability of this danger and whether Ralphs had a duty to remedy such a danger. (See Id.)

[2] To the extent Plaintiff contends that the rainwater is the dangerous condition, the Court agrees with Ralphs that rainwater is open and obvious and, thus, does not constitute a dangerous condition here. (See, e.g., Nicoletti v. Kest, (2023) 97 Cal. App. 5^th 140.)

[3] The Court recognizes that Plaintiff’s expert took her measurements long after the incident and that Defendant’s expert took measurements after Plaintiff’s expert that demonstrate sufficient slip resistance. Because the Court grants summary judgment on other grounds, it does not herein address those issues.

The Court also recognizes that Defendant’s open and obvious argument has some application here. Again, because the Court grants summary judgment on other grounds, it does not herein address that argument.