Judge: Lee S. Arian, Case: 21STCV41463, Date: 2023-11-29 Tentative Ruling

Case Number: 21STCV41463    Hearing Date: November 29, 2023    Dept: 27

Tentative Ruling

Judge Lee S. Arian, Department 27

HEARING DATE:     November 29, 2023                           TRIAL DATE:  February 24, 2024

CASE:                         Shalia Gibson v. Burlington Coat Factory, et al.

CASE NO.:                 21STCV41463

MOTION FOR SUMMARY JUDGMENT

MOVING PARTY:               Defendant Burlington Coat Factory of Texas, Inc.

RESPONDING PARTY:      Plaintiff Shalia Gibson

I.          INTRODUCTION 

On November 10, 2021, Plaintiff, Shalia Gibson, filed this action against Defendant, Burlington Coat Factory of Texas, Inc.[1], for injuries arising from a December 9, 2019, slip and fall on Defendant’s premises.  Specifically, she alleges that she fell over a shoe bench at Defendant's store, which she contends constituted a dangerous condition.

On June 20, 2023, Defendant filed the instant Motion for Summary Judgment.  On October 16, 2023, Plaintiff filed an opposition.  On November 21, 2023, Defendant filed a reply.

II.        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. Premises Liability

The elements of a premises liability and negligence 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.) 

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 need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence.” (Ortega, supra, 26 Cal.4th at p. 1206.) 

“The exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, because, obviously, it varies according to the circumstances.” (Louie v. Hagstrom’s Food Stores (1947) 81 Cal.App.2d 601, 608.) Typically, the question of whether a condition existed so long as to be discoverable within a reasonable time is a question of fact to be decided by the jury. (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 807; Tuttle v. Crawford (1936) 8 Cal.2d 126, 130; Rothschild v. Fourth & Market St. Realty Co. (1934) 139 Cal.App. 625, 627.) However, if there is no substantial evidence from which it can be reasonably inferred that the condition existed for a sufficient period of time to charge the defendant with constructive notice of its presence and to remedy the condition, a defendant may be entitled to judgment as a matter of law. (Perez v. Ow (1962) 200 Cal.App.2d 559, 562.) 

III.       DISCUSSION

Evidentiary Objections

Defendant objects to various parts of Plaintiff’s expert’s declaration.  The Court overrules these objections.

Analysis

            Defendant moves for summary judgment on the grounds that (1) no dangerous condition existed the store at which Plaintiff fell and (2) even if there were a dangerous condition, it was open and obvious.  Defendant points to the following undisputed facts to support its motion: there were no prior reports of customers falling over the shoe bench (Defendants’ Separate Statement of Undisputed Material Facts “SSUMF” no. 7); Defendant’s employees did not identify any hazards concerning the shoe bench during their regular inspections (id. no. 8); Defendant’s employees did not have notice of the shoe bench being a dangerous condition (id. no. 9); Plaintiff used shoe benches before (id. no. 12); and Plaintiff could see perfectly fine when walking around the store and would have seen the shoe bench had she looked down. (Id. no. 13.) Defendant thus argues that the shoe bench was not a dangerous condition and it did not have a duty to warn Plaintiff, or any other customer, of the presence of the shoe bench, being that the bench was an open and obvious condition, and had Plaintiff looked down, she would have seen it.

            In opposition, Plaintiff argues that there exists a triable issue of material fact as to whether the placement of the shoe bench in between the shoe shelves and not flush with the aisle that Plaintiff was walking was a dangerous and hazardous condition. Plaintiff testifies that as someone who worked in retail, the bench was in the wrong area, and a shoe bench should be on the end cap of the rows and not in the middle between two shoe racks. (Plaintiff’s Response to Defendant’s SSUMF “Pl. Resp. SSUMF” no. 12.) Plaintiff also relies on retail safety expert Alex J. Balian, who opines that (1) Defendant created an undetectable tripping hazard by placing a shoe bench in between the opening of the aisle, (2) benches are customarily located at the end of the aisle, and (3) there were no cones or signs warning customers not to enter due to the blockage of the shoe benches between the shoe shelves. (Id. nos. 6, 9, 10, 13.) Further, Plaintiff argues that there exists a triable issue of material fact as to whether the bench was not flush with the shoe shelf on the side where Plaintiff was traversing, which created a dangerous condition or fall hazard. Plaintiff testified that she did not see the shoe bench while she was walking down the aisle and approaching the opening. (Id. no. 13.) Particularly, Plaintiff points to the exhibits in deposition of Defendant’s store manager, Diane Yeggae, which Plaintiff claims show that the shoe bench is not flush with the aisle, making it impossible for Plaintiff to have seen the shoe bench as she approached the opening. (Id. nos. 7, 8, 13.) Plaintiff also claims that Yeggae’s testimony confirms the shoe bench was not flush. (Id.) The relevant testimony is as follows:

Q: Well, we’ve already established that the bench was much closer to side D than to side C, right? Right?

A: Yes.

(Yeggae Depo. p. 41:21-23.)

Plaintiff also relies on the deposition testimony of Defendant’s Operations Manager, Sahib Madrigal, who took the incident report and confirmed that the shoe bench was not flush with the front of the shelves, stating, “it’s not adjacent to the shelves.” (Madrigal Depo. p. 48:5-13.) Balian also opines that the shoe bench was positioned flush up against the edge of the next aisle, which made it impossible to see from Plaintiff’s aisle. (Balian Decl. ¶¶ 8-9.)

            Defendant reasserts its arguments made in the moving papers in its reply, adding a bit of disbelief and incredulity at the opposing arguments.

Considering the evidence in the record and the argument submitted by both sides, the Court concludes that Defendant has not shown that Plaintiff has failed to raise a triable issue of fact. Frankly, both parties did not give the Court much to go on:  Defendant essentially repeats that a bench in a shoe department cannot be a dangerous condition and Plaintiff responds with various inapplicable arguments, such as Defendant knew it had to keep its aisles clear of hangars.  (The Court recognizes the attempted analogy by Plaintiff; suffice it to say, that analogy does not work at all – the bench was not in an “aisle” and it is nothing like a hangar in size; beyond that, the evidence of the condition of the store aisles in this case do not fall in line with Plaintiff’s analogy, as the photographs presented to the Court demonstrate that the store aisles are immaculately maintained.) 

Ultimately, this case comes down to whether the store was defectively designed, in relation to bench placement, not, as Defendant repeatedly seeks to frame the issue, whether a bench belongs in a shoe department. Of course a bench belongs in a shoe department.  But that does not mean that it belongs where it was placed – that placement could be dangerous.  Defendant, who ultimately has the burden to establish that there is no triable issue of fact, simply ignores that store design issue.  That is the issue Plaintiff is actually raising – she contends the store, with the bench placed in what conceivably appears as a pass-through between aisles was designed defectively, creating a dangerous condition.  Defendant never addresses that issue head-on. The placement of the shoe bench, size of the shoe bench, and the fact that the shoe bench was not flush with the shoe shelf on the side where Plaintiff was walking may not have been so clear, open, and obvious as to relieve Defendant of its duty to make the condition safer.  (Cf. Chance v. Lawry’s, Inc. (1962) 58 Cal.2d 368, 374 [open planter box situated in narrow foyer of busy restaurant sufficient to support jury’s conclusion that business should have obviated the danger or warned the plaintiff of its existence].) The Court finds that Plaintiff raises a triable issue of fact as to whether the shoe bench constituted a dangerous condition as placed in the store.

IV.       CONCLUSION

            The motion for summary judgment is DENIED.

Plaintiff to give notice. 

Dated:   November 29, 2023                           ___________________________________

                                                                                    Lee S. Arian

                                                                                    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.