Judge: Lisa R. Jaskol, Case: 21STCV41078, Date: 2025-03-03 Tentative Ruling
All parties are urged to meet and confer with all parties concerning this tentative ruling to see if they can reach an agreed-upon resolution of their matter. If you are able to reach an agreement, please notify the courtroom staff in advance of the hearing if you wish to submit on the tentative ruling rather than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org. Include the word "SUBMITS" in all caps and the Case Number in the Subject line. In the body of the email, please provide the date and time of the hearing, your name, your contact information, the party you represent, and whether that party is a plaintiff, defendant, cross-complainant, cross-defendant, claimant, intervenor, or non-party, etc.
Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may still appear at the hearing and argue the matter, and the court could change its tentative based upon the argument. 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 you submit, but still intend to appear, include the words "SUBMITS, BUT WILL APPEAR" in the Subject line. If you elect to argue your matter, you are urged to do so remotely, via Court-Connect.
Note that once the Court has issued a tentative, the Court has the inherent authority not to allow the withdrawal of a motion and to adopt the tentative ruling as the order of the court. This does not excuse a moving party's need to do one of the following: appear; submit; or take a matter off calendar by canceling the motion in the case reservation system before issuance of the tentative ruling if the matter moving party does not intend to proceed.
If you submitted a courtesy copy of your papers containing media (such as a DVD or thumb drive), unless you request the return of the media in your papers, the court will destroy it following the hearing of your matter.
Case Number: 21STCV41078 Hearing Date: March 3, 2025 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
A. Previous proceedings
On November 8, 2021, Plaintiff Solei Smith (“Plaintiff”) filed this action against Defendants Panda Express, Inc. and Does 1-50 for premises liability and general negligence.
On December 23, 2021, Defendant Panda Restaurant Group, Inc., erroneously sued as Panda Express, Inc. (“Defendant”), filed an answer.
Trial is currently scheduled for May 1, 2025.
B. This motion
On March 1, 2024, Defendant filed a motion for summary judgment. The motion was set for hearing on August 30, 2024. On July 9, 2024, the Court continued the hearing to March 3, 2025. On February 11, 2025, Plaintiff filed an opposition. On February 20, 2025, Defendant filed a reply.
PARTIES’ REQUESTS
Defendant asks the Court to grant summary judgment.
Plaintiff asks the Court to deny the motion.
LEGAL STANDARD
A. Summary judgment
“‘[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.’” (LAOSD Asbestos Cases (2023) 87 Cal.App.5th 949, 945, quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (Aguilar)) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Aguilar, supra, 25 Cal.4th at p. 850.)
When the moving party is a defendant, it must show that the plaintiff cannot establish at least one element of the cause of action. (Aguilar, supra, 25 Cal.4th at p. 853.) “The defendant has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) The defendant must “present evidence, and not simply point out that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Ibid.) Thus, “the defendant must ‘support[ ]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken.’ [Citation.] The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff’s cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Id. at p. 855, original emphasis.)
“Supporting and opposing affidavits or declarations . . . shall set forth admissible evidence.” (Code Civ. Proc., § 437c, subd. (d).) “Matters which would be excluded under the rules of evidence if proffered by a witness in a trial as hearsay, conclusions or impermissible opinions, must be disregarded in supporting affidavits.” (Hayman v. Block (1986) 176 Cal.App.3d 629, 639.)
In ruling on the motion, the court must consider all the evidence and all the inferences reasonably drawn from it and must view such evidence and inferences in the light most favorable to the opposing party. (Aguilar, supra, 25 Cal.4th at p. 843.)
B. Negligence and premises liability
“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.)
“Landowners under California law are required to maintain land in their possession and control in a reasonably safe condition.” (Williams v. Fremont Corners, Inc. (2019) 37 Cal.App.5th 654, 663 (Williams), citing Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 674 (Ann M.).) “The underlying principle, set forth in Civil Code section 1714, subdivision (a), is that “‘[e]veryone is responsible ... for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person . . . .’” (Ibid.) This rule “‘establishes the general duty of each person to exercise, in his or her activities, reasonable care for the safety of others.’” (Ibid., quoting Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1083 (Vasilenko); see Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 214.)
“ ‘ “ ‘Courts ... invoke[ ] the concept of duty to limit generally “the otherwise potentially infinite liability which would follow from every negligent act ....” ’ ” ’ ” (Williams, supra, 37 Cal.App.5th at p. 663, quoting Vasilenko, supra, 3 Cal.5th at p. 1083.) “Our Supreme Court has explained that an exception to the general rule of Civil Code section 1714 must be “ ‘ “ ‘clearly supported by public policy.’ ” ’ ” (Ibid., quoting Vasilenko, supra, 3 Cal.5th at p. 1083.) “Courts look to what are commonly called ‘the Rowland factors’ in determining whether policy considerations favor such an exception.” (Ibid., citing Vasilenko, supra, 3 Cal.5th at p. 1083.) “These are “ ‘ “the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to the defendant's conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.” [Citation.]’ ” (Ibid., quoting Vasilenko, supra, 3 Cal.5th at p. 1083; Rowland v. Christian (1968) 69 Cal.2d 108, 113 (Rowland).)
In considering the Rowland factors, the court “determine[s] ‘not whether they support an exception to the general duty of reasonable care on the facts of the particular case before us, but whether carving out an entire category of cases from that general duty rule is justified by clear considerations of policy.’ ” (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 629.)
DEFENDANT’S REQUEST FOR JUDICIAL NOTICE
Granted.
EVIDENTIARY OBJECTIONS
A. Plaintiff’s evidentiary objections
Overruled: 1, 2
B. Defendant’s evidentiary objections
Plaintiff’s evidence was not material to the Court’s disposition of Defendant’s motion. (See Code Civ. Proc., § 437c, subd. (q).)
DISCUSSION
A. The complaint
The complaint includes the following allegations:
On November 7, 2019, Plaintiff was a customer of Panda Express located at 8201 Topanga Canyon Boulevard, Canoga Park, California. Defendants negligently owned, operated, cleaned, maintained, managed, supervised and/or monitored the menu items. Due to a dangerous condition, Plaintiff burned the roof of her mouth with a food item, causing her skin to fall off at the premises. Defendant had actual and/or constructive notice of the dangerous condition.
Defendants negligently owned, operated, maintained, cleaned, failed to inspect, and failed to supervise their place of business and the common areas at the Panda Express located at 8201 Topanga Canyon Blvd., Canoga Park, CA 91304. Due to Defendants’ negligence, Plaintiff sustained injuries at that location. Defendant had actual and/or constructive notice of the dangerous condition.
B. Defendant has not carried its initial summary judgment burden
Defendant argues that Plaintiff cannot prove that it breached a duty which it owed Plaintiff. (Motion p. 5.) According to Defendant, Plaintiff has not alleged facts or presented evidence supporting her complaint. But Defendant has not submitted evidence showing that Plaintiff will be unable to present evidence at trial supporting her claims. (See Aguilar, supra, 25 Cal.4th at pp. 853-855.)
Defendant relies on the following evidence to support its summary judgment motion:
1. Defendant cites Plaintiff’s Response to Request for Production of Documents (Set One), page 4, lines 8–11, to support its argument that Plaintiff cannot establish that she was present at the premises the day of the incident because she cannot provide a receipt from the restaurant. (Motion p. 4; Defendant’s UMF 6.) In her response, Plaintiff stated: “After conducting a diligent search and reasonable inquiry, Responding Party has no non-privileged documents at this time in her custody, control or possession that are responsive to this request. . . .” (Defendant’s exh. 2, p. 4.) This discovery response does not support a conclusion that Plaintiff cannot establish – for example, through testimony by Plaintiff or her family members who were present – that Plaintiff was present at the premises the day of the incident.
2. Defendant cites generally the “Deposition of Plaintiff” to support its argument that “Plaintiff does not provide any description of the person who allegedly gave her a sample of Defendant’s Orange Chicken.” (Motion p. 4; Defendant’s UMF 11; see Plaintiff’s response to UMF 11 [“Plaintiff was not asked to provide a description of the person who gave her the food sample”].) Even assuming for the sake of argument that Plaintiff could not describe the person who gave her the sample, Defendant has not shown that Plaintiff cannot testify that she received the sample from one of Defendant’s employees.
3. Defendant cites the report of a food safety expert who inspected Defendant’s premises on February 23, 2024. Based on his inspection, the expert concluded that the temperatures involved in preparing the Orange Chicken dish were “reasonable” and the location “met, and meets or exceeds, industry standards for food preparation and safety of this item at the time of Plaintiff’s alleged injuries.” (Exh. 3, Nelken dec. ¶¶ 32-33; see exh. 5, Bacilio Diaz-Rubio dec. ¶¶ 5-7.) While the report may support Defendant’s arguments, it does not show that Plaintiff will be unable to present evidence that the food sample she received was so hot that it burned her mouth.
CONCLUSION
The Court DENIES Defendant Panda Restaurant Group, Inc.’s motion for summary judgment.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.