Judge Lee S. Arian, Case Number: 22STCV11838, Date: 2023-11-07 Tentative Ruling

On April 7, 2023, Plaintiff Kevin Foti (“Plaintiff”) filed this action against Defendants Westfield, LLC, Westfield Topanga Owner LLC (together “Westfield Defendants”), and Costco Wholesale Corporation (“Costco”). Plaintiff alleges two causes of action for premises liability and general negligence for injuries arising from a slip and fall.

On October 31, 2022, Westfield Defendants filed a Cross-Complaint against Costco for (1) implied indemnity, (2) comparative contribution, (3) total equitable indemnity, (4) express indemnity, and (5) declaratory relief.

On June 23, 2023, Defendant Costco filed this motion for summary judgment against Plaintiff and Westfield Defendants. No opposition has been filed.

As alleged by the Complaint, Plaintiff states that he was on the premises located at Westfield Topanga Mall. Plaintiff states he utilized the moving sidewalk to descend to ground level at the Westfield Topanga Mall next to the Costco store. As Plaintiff approached, stepped on, or walked on the landing of the moving sidewalk, he slipped and fell on a wet and slippery floor. Plaintiff alleges that Defendants knew about this dangerous condition with enough time before the accident to either make the condition safe or provide a reasonable warning of the dangerous condition. (Compl. p. 4-5.)

Plaintiff alleges that Costco “owned, possessed, managed, supervised, maintained and [was] in control of the parking structure and the property.” (Compl. p. 5.)

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 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 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 Costco moves for summary judgment as to Plaintiff’s First Amended Complaint and Westfield Defendants’ Cross-Complaint on the grounds that Costco owed no duty to Plaintiff.

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.)

“[T]he duty to take affirmative action for the protection of individuals coming upon the land is grounded in the possession of the premises and the attendant right to control and manage the premises.” (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 368.) “[T]he right of supervision and control goes to the very heart of the ascription of tortious responsibility.” (Preston v. Goldman (1986) 42 Cal.3d 108, 119.) Thus, “[a] defendant cannot be held liable for the defective or dangerous condition of property which it [does] not own, possess, or control.” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.)

“The law of premises liability does not extend so far as to hold [a defendant] liable merely because its property exists next to adjoining dangerous property and it took no action to influence or affect the condition of such adjoining property.” (Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 720.) Liability requires a “notorious and open public display of control over adjacent property” or an act that constitutes a dramatic assertion of a right normally associated with ownership. (Contreras v. Anderson (1997) 59 Cal.App.4th 188, 201.)

Costco argues that it did not have a duty to Plaintiff because Costco does not own the real property where the Westfield Topanga Mall is located and did not own or control the travellator, where the incident occurred.

Costco puts forth evidence that it did not own, possess, or control the travellator where the incident occurred. The evidence shows that Costco did not own the real property located at 21800 Victory Boulevard, Woodland Hills. (Ex. 3 [Lease]; Ruijters Decl., ¶ 2.) Costco puts forward its Lease Agreement that shows that its leased areas only include the building in which Topanga Costco is housed, an adjacent parcel for Costo’s Fuel Facility, adjacent designated “Sidewalk Sales Area, and a parking area “at-grade with the entrance to” the Topanga Costco. (Ex. 3 [Lease, § 1.1].) The Lease provides that Costco has the responsibility to maintain and repair the Topanga Costco and Common Areas located on Costo’s leased property, “but excluding the Parking Structure and Common Utilities.” (Ex. 3 [Lease, § 7.5.1].) The landlord “shall maintain and repair the Parking Structure.” (Ex. 3 [Lease, § 7.5.2].) On July 26, 2017, Costco entered into the Fourth Amendment to Lease which amended the Original Lease to provide for the construction and maintenance of the travellators in the Westfield Topanga Mall. (Ex. 4 [4^th Amended Lease].) Under this Amendment, the landlord, not Costco, owned and bore the cost and responsibility for the operation and maintenance of the travelator. (Ex. 4 [4^th Amended Lease, § 7.5.1].) Costco does not own, operate, or maintain the travellators. (Ruijters Decl., ¶ 6.)

“Defendant(s) allowed the use of the travellator when it was wet and slippery… There were no warnings by the travellator or any visual cues…. The process of closing the travellator or utilizing a warning sign would have been the minimal required conduct…. Failure to maintain the subject parking lot and travellator such that it would not be slippery to customers of Costco and Westfield, Defendant(s) failed and/or refused to warn of the slippery and dangerous condition or take precautions to remedy the slippery condition or reroute patrons. (Ex 2. [SPROGs No. 1].)

“I parked my car on the second floor parking area. I headed to the travellator and saw an employee at the top of the escalator in the corner with his head down leaning on a shopping cart and who appeared to be inattentive and nodding off or sleeping. I continued and took the travellator downward and as I reached the bottom landing, my left foot slips out from under me and goes forward. I fell backwards, hit the back of head, flat on my back with my right leg pinned underneath me. The travellator continues to run and the alarm went off.” (Ex. 2 [SPROGs No. 9].)

This evidence shows that the dangerous condition and fall occurred on the travelators or on the landing surrounding the travelators. Defendant Costco has put forth evidence that it did not own, maintain, or control the travelator. As such, Defendant Costco has met its burden that to show that there is no triable issue of material fact with respect to its duty. As Plaintiff has not filed an opposition, Plaintiff has not met its burden to show that a triable issue of material fact exists.

Because Defendant Costco has put forward evidence that it did not owe a duty to Plaintiff, it has also shown that it cannot be liable to Westfield Defendants for its indemnity or contribution causes of action.

“To state a claim for equitable indemnity, a defendant must allege the same harm for which he may be held liable is properly attributable—at least in part—to the cross-defendant.” (Platt v. Coldwell Banker Residential Real Estate Services (1990) 217 Cal.App.3d 1439, 1445, fn.7.) “An indemnitee seeking to recover on an agreement for indemnification must allege the parties’ contractual relationship, the indemnitee’s performance of that portion of the contract which gives rise to the indemnification claim, the facts showing a loss within the meaning of the parties’ indemnification agreement, and the amount of damages sustained.” (Four Star Electric, Inc. v. F & H Construction (1992) 7 Cal.App.4th 1375, 1380.) A claim for contribution requires a money judgment rendered jointly against two or more defendants in a tort action, in accordance with the principles of equity, after one tortfeasor has, by payment, discharged the joint judgment or has paid more than his pro rata share thereof, without intentional injury by the tortfeasor. (Code Civ. Proc., § 875, subds. (a)-(d).)

Westfield Defendants allege in their Cross-Complaint that Plaintiff’s injuries arose from the negligent, intentional, and/or reckless acts of Costco, and thus Westfield Defendants seek indemnity and contribution. (Cross-Complaint ¶ 9, 12, 14, 17.) The Cross-Complaint does not allege the existence of an express indemnification agreement, although it asserts a cause of action for express indemnity. (Compl. ¶¶ 16-18.)

As Costco’s evidence shows that it was not negligent because it did not have a duty to keep the travellator safe, Costco also has met its burden of showing that it cannot be liable for the indemnity and contribution causes of action alleged against it in the Cross-Complaint.

As Cross-Complainants have not filed an opposition, Cross-Complainants have not met their burden to show that a triable issue of material fact exists.

In light of the foregoing, Costco’s Motion for summary judgment as to the First Amended Complaint and to the Cross-Complaint is GRANTED.

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