Judge: Lee W. Tsao, Case: 21STCV15757, Date: 2024-02-06 Tentative Ruling

Case Number: 21STCV15757    Hearing Date: April 9, 2024    Dept: C

Rosa M. Kingsbury vs The Kroger Co., et al.

Case No.: 21STCV15757

Hearing Date: April 9, 2024 @ 10:30 AM

#8

Tentative Ruling

Defendant Ralphs Grocery Company’s Motion for Summary Judgment is GRANTED.

Defendant to give notice.

Background

This action for premises liability was filed by Plaintiff Rosa M. Kingsbury (“Plaintiff”) on April 27, 2021.  The operative Second Amended Complaint (“SAC”) was filed on November 29, 2022.  The SAC alleges that “[o]n or about April 24, 2020, plaintiff Rosa M. Kingsbury was on the premises of defendants’ grocery store for the purpose of purchasing groceries. Defendants maintained the premises in an unsafe condition as pallets were present which were unstable and maintained in a manner where customers could and were harmed. Plaintiff Rosa M. Kingsbury attempted to obtain products and the pallet gave way causing serious physical injuries to the plaintiff, including but not limited to a fractured hand.” (SAC ¶ 11.) “[P]laintiff entered Food4less with the intention and purpose of purchasing food. Once injured as described above, Defendants intentionally refused to provide her with assistance, refused to investigate the claims, refused to call for medical services, refused to take an accident claim, refused to treat her with dignity and respect, and when she asked for help as she was injured, humiliated her by asking her “don’t you have kids to help you?” (SAC ¶ 20.)  The SAC alleges causes of action for 1) Negligence and 2) Violation of the Unruh Civil Rights Act. 

Defendant RALPHS GROCERY COMPANY dba FOOD 4 LESS (incorrectly named and served as THE KROGER CO.) ("Defendant") moves for summary judgment or, alternatively, summary adjudication on the following grounds: 1) as to the first cause of action for negligence, the alleged dangerous condition was open and obvious, and 2) Plaintiff is unable to establish one or more elements of the second cause of action. 

On February 6, 2024, the Court Continued the motion to this date to allow Plaintiff to take outstanding depositions.  Subsequently, Plaintiff filed a supplemental opposition and Defendant filed a supplemental reply.   

Evidentiary Objections

As to Defendant Ralphs Grocery Company’s objections to the Declaration of Ryan Radebach:

Objection Nos. 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 20, 21, and 22 are OVERRULED.

Objection No. 19 is SUSTAINED.

As to Defendant Ralphs Grocery Company’s objections to the Declaration of Rosa Kingsbury:

Objection Nos. 1, 2, 3, and 4 are OVERRULED.

Legal Standard

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (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.) 

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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 “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.”  (Code Civ. Proc., § 437c(p)(2).)  “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.”  (Id.)  “If the plaintiff cannot do so, summary judgment should be granted.”  (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.) 

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).) 

Discussion

Plaintiffs First Cause of Action for Negligence

In order to establish liability in premises liability action, plaintiff must prove duty, breach, causation and damages. (Castellon v. U.S. Bancorp. (2013) 220 Cal.App.4th 994, 998.) Because the store owner is not the insurer of the visitor’s personal safety, the owner’s actual or constructive knowledge of the dangerous condition is key to establishing its liability. (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476.)

As to the first cause of action for negligence, Defendant offers the following evidence:

·        Plaintiff contends, on or about April 24, 2020, she was on Defendant's premises when she attempted to carry a case of water to her shopping cart. (UMF No. 1.)

·        The wooden pallet holding the water was sitting on the ground at the time. (UMF No. 2.)

·        The bottom portion of the pallet was painted blue. (UMF No. 3.)

·        The flooring underneath the pallet was not blue. (UMF No. 4)

·        Plaintiff put her right foot on top of the wooden pallet right next to where the water was located. (UMF No. 5.)

·        When she attempted to pick up a case of water, a piece of wood on the pallet allegedly broke. (UMF No. 6.)

·        Plaintiff allegedly lost her balance and fell down. (UMF No. 7.)

·        Plaintiff contends she injured her left hand in the fall. (UMF No. 8.)

It is undisputed that Plaintiff put her right foot on the wooden pallet, and when she attempted to pick up a case of water, a piece of wood broke, causing Plaintiff to lose her balance and fall.  Thus, Defendant has introduced evidence that suggests Plaintiff caused herself to fall after intentionally putting her foot on the wooden pallet in order to obtain a case of water.  Based thereon, Defendant has made a prima facie showing that there are no triable issues of material fact.  The burden now shifts to Plaintiff to raise a triable issue of material fact. 

In opposition to the motion, Plaintiff offers the declaration of Ryan Radebach who opines that Defendants failed to provide a safe walkway for patrons inside the store (PPMF Nos. 1-4), Defendant knew or should have known that the subject pallet posed a significant hazard that created a serious risk of harm on the day of the Plaintiff's fall (PPMF Nos. 5), and Defendant failed to take reasonable measures to avoid the hazard (PPMF Nos. 7-11).  However, Mr. Radebach’s opinion is based upon the understanding that “Plaintiff came in contact with the pallet and then tripped and fell, sustaining injuries.” (Radebach Decl., ¶ 9, italics added.)  Because the evidence suggests Plaintiff intentionally placed her foot on the pallet, the foundation for Mr. Radebach’s opinion – that Plaintiff tripped and fell over the pallet – lacks evidentiary support. 

In her Supplemental Opposition, Plaintiff argues that photos of the pallet demonstrate that it was cracked.  The Court has reviewed the photos, and it is not apparent to the Court that the pallet was cracked anywhere that might have caused Plaintiff to fall.  The Court determines that Plaintiff has failed to raise a triable issue of material fact as to the first cause of action. 

Plaintiff’s Second Cause of Action for Violation of the Unruh Civil Rights Act

To establish an UNRUH violation, Plaintiff needs to show that Defendant denied her access to a business establishment based on intentional discrimination. (Munson v. Del Taco, Inc., (2009) 46 Cal. 4th 661, 664-665.)

The SAC alleges that ““[P]laintiff entered Food4less with the intention and purpose of purchasing food. Once injured as described above, Defendants intentionally refused to provide her with assistance, refused to investigate the claims, refused to call for medical services, refused to take an accident claim, refused to treat her with dignity and respect, and when she asked for help as she was injured, humiliated her by asking her “don’t you have kids to help you?” (SAC ¶ 20.) 

As to the second cause of action, Defendant offers the following evidence:

·        The manager asked Plaintiff if she wanted to make a report. (UMF No. 11.)

·        The manager then brought out forms for Plaintiff to fill out. (UMF No. 12.)

·        Plaintiff filled out the forms. (UMF No. 13.)

·        The manager then instructed Plaintiff that someone was going to call her about the accident. (UMF No. 14.)

·        The manager then took a picture of Plaintiff's left hand. (UMF No. 15.)

·        Plaintiff never asked the manager to call paramedics for her. (UMF No. 16.)

·        Plaintiff was later able to obtain a copy of the report. (UMF No. 17.)

·        After speaking with the manager, Plaintiff asked a security guard to remove water from her shopping cart. (UMF No. 21.)

·        The security guard asked "Why? Don't you have kids at home?" (UMF No. 22.)

·        When Plaintiff informed him that she lived alone, the security guard removed the water from her cart. (UMF No. 23.)

Based thereon, Defendant has made a prima facie showing that there are no triable issues of material fact.  The burden now shifts to Plaintiff to raise a triable issue of material fact. 

In opposition, Plaintiff offers to following evidence:

·        Defendant caused plaintiff to obtain the assistance of family members before they would provide her with the necessary documents and authorization to seek treatment, as they intentionally ignored her obvious injuries. (PSS ¶ 12; Kingsbury Decl., ¶ 4.)

·        Defendant’s agents inquiry into plaintiff’s marital status and family relationships caused her distress and humiliation. (PSS ¶ 13; Kingsbury Decl., ¶ 8.)

Plaintiff argues she received differential treatment based on her status as a single elderly woman when she suffered an injury.  She relies primarily on her interaction with a security guard after she asked him to remove a case of water from her cart.  The security guard asked, “Why don’t you have kids at home?”  According to Plaintiff, this question is evidence of discrimination based on her age, marital status, and gender. 

The Court finds that the evidence submitted by Plaintiff fails to show intentional discrimination by Defendant.  Defendant’s employees provided the incident form to Plaintiff, photographed Plaintiff’s hand, and later provided her with a copy of the report.  There is no indication that the question asked by the security guard reflected the attitudes of the store manager or other store employees, and any inference that Defendant’s employees were motivated by discriminatory intent is speculative.  The Court recognizes that Plaintiff was injured and felt humiliated by Defendant’s indifference towards her distress.  However, the Court determines that Plaintiff has failed to show that this indifference was motivated by discrimination based on age, marital status, or gender. 

Accordingly, Defendant’s Motion for Summary Judgment is GRANTED.