Judge Lee S. Arian, Case Number: 22STCV33240, Date: 2025-03-04 Tentative Ruling

On October 11, 2022, Plaintiff filed this premises liability case against Yoshinoya America, Inc. (“Yoshinoya”). Plaintiff was using the restroom when the toilet seat allegedly broke, causing her to fall and sustain injuries. Defendant moves for summary judgment on the basis that Yoshinoya had no notice of the alleged dangerous condition.

In reviewing a motion for summary judgment or adjudication, 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).) If the moving party fails to carry its burden, the inquiry is over, and the motion must be denied. (See Id.; see also Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) Even if the moving party does carry its burden, the non-moving party will still defeat the motion by presenting evidence of a triable issue of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849-50.)

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.)

The court must “liberally construe the evidence in support of the party opposing summary judgment and resolve all doubts concerning the evidence in favor of that party,” including “all inferences reasonably drawn therefrom.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037; Aguilar, supra, 25 Cal.4th at pp. 844-45.) “On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. [Citation.] Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true. [Citation.] Nor may the trial court grant summary judgment based on the court’s evaluation of credibility. [Citation.]” (Id. at p. 840; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)

The elements of a cause of action for negligence are duty of care, breach of duty, causation, and damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) The elements of a cause of action for premises liability are the same as those for negligence. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “The basic principle to be followed in all these situations is that the owner must use the care required of a reasonably prudent [person] acting under the same circumstances.” (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476.) While an owner is not an insurer of safety, they owe a duty to exercise reasonable care in keeping the premises safe. (Ortega, supra, at 1205.) A store owner exercises reasonable care by regularly inspecting the premises, with the required level of care corresponding to the risks involved. (Id.) Accordingly, the owner’s actual or constructive knowledge of a dangerous condition is key to establishing liability. (Id.)

The Court overrules Plaintiff’s objections, except as to the Declaration of Steve Brown, which were not material to the Court’s ruling. (CCP § 437c(q).)

On October 11, 2020, between approximately 7:00 p.m. and 8:00 p.m., Plaintiff entered Yoshinoya’s restaurant. According to Plaintiff, she used the restroom, and while using the toilet, the toilet seat allegedly broke, causing her to fall and sustain injuries. (UF Nos. 1-2.)

Defendant contends that Yoshinoya employees inspected the restroom once an hour after opening that day, and none of these inspections revealed any problems or dangerous conditions. (Stewart Decl. ¶ 3.) Additionally, the onsite shift manager inspected the restroom on the same day before the incident and did not observe any issues or defects. (Id. at ¶¶ 4-5.)

Defendant further asserts that numerous customers and employees used the restroom before and on the day of the incident without issue. According to Defendant, there have never been prior similar incidents involving the toilet or toilet seat at the restaurant. (Id. at ¶ 6.) In fact, before Plaintiff’s alleged fall, Yoshinoya had never received any complaints or notice regarding the condition or safety of the toilet seat. (Id.)

Based on this evidence, Defendant has met its initial burden by demonstrating that Yoshinoya had no actual notice of the alleged dangerous condition and lacked constructive notice because the restaurant was regularly inspected, and no issues were found.

In the opposition, Plaintiff presents various arguments relating to notice and duty, all of which hinge on two pieces of evidence that purportedly raise a triable issue of fact.

Plaintiff cites her own deposition testimony, claiming that after she brought the bolt to the cashier, the cashier turned to the cook and stated, “You know what this is,” to which the cook allegedly responded, “Yeah.” (Mayoff Decl. ¶ 3, Opp-Exhibit “A,” Jeffries Depo at P. 43, lines 20-24; P. 44, line 1; P. 50, lines 24-25; P. 51, lines 1-4.) Plaintiff argues that this exchange demonstrates that the cashier and cook were aware of the defective toilet seat bolt before her fall, and that this knowledge should be imputed to Yoshinoya.

This argument is unpersuasive for multiple reasons. First, the deposition transcript pages cited by Plaintiff are not provided to the Court, and there is no reference in the submitted transcript to the cashier making the alleged statement.

Second, Plaintiff relies on Hatfield v. Levy Brothers (1941) 18 Cal.2d 798 and Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, arguing that knowledge of an employee regarding a dangerous condition may be imputed to the employer when the employee creates or maintains the hazardous condition within the scope of their employment. The holding in both cases follow the doctrine of respondeat superior, which holds an employer liable for the negligent acts of employees acting within the scope of their employment. Even if Plaintiff’s deposition testimony did establish that the cashier turned to the cook and stated, “You know what this is,” and the cook responded, “Yeah,” nothing in the record suggests that the cashier or cook created or maintained the allegedly hazardous condition, as required under Hatfield and Getchell for employer liability. Plaintiff presented no evidence that either employee installed, repaired, or was responsible for inspecting the toilet seat.

Furthermore, Plaintiff’s theory rests on an unsupported assumption—that the cook’s response, “Yeah,” meant he specifically recognized the bolt as coming from the toilet seat rather than merely acknowledging that it was a generic screw or bolt. Nothing in the evidence suggests that the cook knew the bolt was from the toilet seat, let alone that it was defective before the incident. Plaintiff’s argument is entirely speculative and fails to establish a genuine issue of material fact.

Plaintiff cites Form Interrogatory No. 12.7, which asks: "Have YOU OR ANYONE ACTING ON YOUR BEHALF inspected the scene of the INCIDENT?" Defendant responded "No," and Plaintiff argues that this constitutes an admission that Defendant did not conduct any inspections of the premises before the incident.

The Court disagrees for several reasons. First, the 12-series Form Interrogatories pertain to post-incident investigations, such as inspections, written statements, and photographs conducted after the incident. Their purpose is to determine what investigations were performed following the incident. For example, Form Interrogatory No. 12.3 asks whether the responding party obtained a written or recorded statement from any individual concerning the incident, reinforcing that these questions focus on post-incident actions.

Form Interrogatory No. 12.7 does not ask whether inspections were conducted prior to the incident, nor does it inquire about general maintenance or safety inspections performed in the ordinary course of business. This is supported by the plain language of the interrogatory, which specifically refers to "inspection of the scene of the INCIDENT." Here, "scene of the incident" refers to the condition of the restroom after the toilet seat allegedly broke and Plaintiff was injured. Inspections relevant to constructive notice, such as routine restroom maintenance checks, occurred before the incident and are entirely separate from an inspection of the scene after the alleged injury occurred.

Accordingly, Defendant’s response to Form Interrogatory No. 12.7 does not support Plaintiff’s argument that Yoshinoya failed to conduct any prior inspections, and it does not create a triable issue of fact regarding constructive notice.

Plaintiff argues that because Defendant asserted assumption of risk as an affirmative defense, it must have known about the alleged hazardous toilet seat before Plaintiff’s fall. Plaintiff contends that if she was merely sitting on the toilet, Defendant could not argue assumption of risk unless it was aware of the risk in the first place. However, Plaintiff does not point to any factual allegations in the pleadings to support this claim. The mere assertion of an affirmative defense does not constitute an admission of prior knowledge of the alleged dangerous condition. In litigation, defendants routinely assert multiple affirmative defenses, including alternative or inconsistent ones, without conceding liability. Courts recognize that affirmative defenses are legal arguments, not factual admissions. Moreover, even if assumption of risk implies that a risk existed, that does not mean Defendant had actual or constructive notice of it before the incident. Plaintiff’s argument assumes that simply raising the defense means Defendant had prior awareness of the alleged defect, but this is an unsupported logical leap. Defendants often learn of alleged risks only after an incident occurs, and assumption of risk may be asserted based on facts discovered post-incident rather than pre-existing knowledge.

Plaintiff also argues that the declarations of Michael Stewart and Steve Brown lack credibility. However, in a motion for summary judgment, the Court does not weigh witness credibility but instead determines whether a triable issue of material fact exists. Specifically, Plaintiff contends that Stewart’s declaration, which states that inspections were conducted hourly, contradicts Yoshinoya’s response to Form Interrogatory No. 12.7. However, as previously explained, Interrogatory No. 12.7 pertains only to post-incident investigations, not to routine inspections conducted for constructive notice purposes prior to the incident. Plaintiff’s reliance on this interrogatory to discredit Stewart’s declaration is misplaced. Furthermore, the Court did not consider Steve Brown’s declaration in reaching its decision.

Plaintiff argues that a toilet bolt can only loosen if there is negligence, and thus contends that this is a circumstance where the doctrine of “res ipsa loquitor” can be applied to establish negligence on the part of Yoshinoya. Plaintiff bears the burden of proof of establishing res ipsa loquitor. (Howard v. Accor Management US, Inc. (2024) 101 Cal.App.5th 130, 137-138.) Thus, Plaintiff must establish that this accident was of a kind that ordinarily does not occur absent someone’s negligence; that the instrumentality of harm was within the defendant’s exclusive control; and that the Plaintiff did not voluntarily contribute to the harm.” (Ibid.) Plaintiff has not established these factors. Specifically, it is not clear to the Court that the loosening of a toilet seat bolt only occurs as a result of negligence. And, the bolt could have loosened here as a result of Plaintiff’s actions or some other member of the public who had access to the restroom. See Howard, 101 Cal App. 5^th at 137-38 (finding hotel shower head that fell apart was not necessarily due to negligence and that the plaintiff’s actions could have caused the shower head to break).

Considering all the evidence, Plaintiff has failed to raise a triable issue of fact. Accordingly, summary judgment is granted.

The elements of res ipsa loquitur are: (1) the event must be of a kind that ordinarily does not occur in the absence of negligence; (2) it must be caused by an instrumentality within the exclusive control of the defendant; and (3) it must not be due to any voluntary action or contribution by the plaintiff. (Ybarra v. Spangard (1944) 25 Cal.2d 486, 489.) Plaintiff contends that she has a viable res ipsa loquitur theory to circumvent the issue of notice.

Under CCP section 437c(h), the Court may continue or deny a motion for summary judgment when a party submits a declaration showing that essential evidence may exist but cannot presently be presented to oppose the motion. (Code Civ. Proc., § 437c(h).) To justify a continuance, the requesting party must demonstrate: (1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts. (Wachs v. Curry (1993) 13 Cal.App.4th 616, 623.)

Here, Plaintiff’s declaration fails to meet the requirements for a 437c(h) continuance. Plaintiff simply states that she needs more time to take depositions that would “better support” opposition to summary judgment, but she does not identify specific facts she expects to obtain or explain why such facts are essential to opposing the motion. It is well established that "it is not sufficient under [CCP section 437c(h)] merely to indicate further discovery or investigation is contemplated.” (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 548.) however, this is what precisely what Plaintiff has done here.

Furthermore, this case was filed on October 11, 2022, and Defendant’s motion for summary judgment was filed on August 16, 2024, approximately seven months ago. This provided Plaintiff with ample time to conduct discovery on her res ipsa loquitur theory. Plaintiff’s counsel has not provided a valid explanation in his declaration as to why discovery was not completed within this timeframe.

Although pleadings may be amended at any stage of litigation (Moss Estate Co. v. Adler (1953) 41 Cal.2d 581, 585–586), a trial court may, in its discretion, deny leave to amend if the party seeking amendment has been dilatory or if the delay has prejudiced or will prejudice the opposing party, especially when no explanation is provided for the delay. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-487.)

This case was filed on October 11, 2022, and the motion for summary judgment was filed seven months ago. The facts supporting res ipsa loquitur should have been known to Plaintiff’s counsel from the outset of litigation, yet Plaintiff failed to seek amendment even after Defendant moved for summary judgment. Plaintiff has been dilatory and has provided no explanation as to why leave to amend was not sought earlier.

Furthermore, res ipsa loquitur is an evidentiary rule, not a cause of action that must be specifically pled. (See Evid. Code, § 646.) Plaintiff does not need to amend the complaint to conduct discovery or rely on this theory to oppose the summary judgment.

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’s 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