Judge: Lisa R. Jaskol, Case: 21STCV45322, Date: 2024-07-09 Tentative Ruling
Case Number: 21STCV45322 Hearing Date: July 9, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On December 13, 2021, Plaintiffs Alicia Lugo (“Lugo”) and German Frausto (“Frausto”) filed this action against Defendants Marshalls, The TJX Companies Inc., Marmaxx Operating Corp., and Does 1-100 for negligence, premises liability, and loss of consortium.
On August 31, 2022, Plaintiffs amended the complaint to include Defendant Marshalls of CA, LLC (“Marshalls”) as Doe 1.
On October 25, 2022, Marshalls filed an answer.
On June 29, 2023, Marshalls filed a motion for summary judgment or, in the alternative, summary adjudication, to be heard on September 12, 2023.
On July 26, 2023, the Court continued the hearing on the motion for summary judgment or summary adjudication to November 20, 2023 based on the stipulation of Marshalls and Plaintiffs. On November 6, 2023, the Court continued the hearing to May 2, 2024 based on the stipulation of Marshalls and Plaintiffs. (The Court’s order stating the hearing was continued to October 30, 2024 appears to be an error.) On May 2, 2024, the Court continued the hearing to July 9, 2024.
On April 18, 2024, and June 25, 2024, Plaintiffs filed oppositions to the motion for summary judgment or summary adjudication. On April 26, 2024, Marshalls filed a reply.
Trial is currently set for December 3, 2024.
PARTIES’ REQUESTS
Marshall’s asks the Court to grant summary judgment or, in the alternative, summary adjudication.
Plaintiffs ask the Court to deny the motion.
LEGAL STANDARD
A. Summary judgment and summary adjudication
“‘[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 addition, a party moving for summary judgment or summary adjudication must support the motion with “a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Parkview Villas Assn. v. State Farm Fire & Casualty Co. (2006) 133 Cal.App.4th 1197, 1209 (Parkview Villas), quoting Code Civ. Proc., § 437c, subd. (b)(1).) The party opposing the motion must file with the opposition papers “a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts that the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence.” (Code Civ. Proc., § 437c, subd. (b)(3).) If either party fails to comply with the applicable separate statement requirement, that failure may in the court’s discretion constitute a sufficient ground to decide the motion adversely to the offending party. (Code Civ. Proc., § 437c, subds. (b)(1), (3).)
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 (Brown).)
“ ‘ “ ‘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.” (Rowland [v. Christian (1968)] 69 Cal.2d [108,] 113, 70 Cal.Rptr. 97, 443 P.2d 561 [(Rowland)].)’ ” (Ibid., quoting Vasilenko, supra, 3 Cal.5th at p. 1083.)
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.)
In addition, “[c]ausation is an essential element of plaintiff’s complaint.” (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126 (Christoff).) “Causation may be determined as a question of law if reasonable minds would not differ.” (Ibid.) “If causation is lacking, the complaint cannot stand.” (Ibid. [“the trial court’s ruling of lack of causation disposes of the entire complaint and suffices to affirm summary judgment in favor of defendant”].)
C. Open and obvious conditions
“As a general rule, an owner or possessor of land owes no duty to warn of obvious dangers on the property.” (Christoff, supra, 134 Cal.App.4th at p. 126.) “There is no duty to warn of an obvious danger but the possessor of land does have a duty to warn an invitee not only of conditions known by him to be dangerous but also of conditions which might have been found dangerous by the exercise of ordinary care. [Citation.] The invitor may assume that an invitee will perceive that which would be obvious to him through the ordinary use of his senses. [Citation.]” (Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27.)
“Foreseeability of harm is typically absent when a dangerous condition is open and obvious. [Citation.] ‘Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.’ [Citation.] In that situation, owners and possessors of land are entitled to assume others will ‘perceive the obvious’ and take action to avoid the dangerous condition.” (Montes v. Young Men’s Christian Assn. of Glendale, California (2022) 81 Cal.App.5th 1134, 1140 (Montes), quoting Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447 (Jacobs).)
A defendant may owe a duty of care even where a dangerous condition is open and obvious, “when ‘it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it).’ ” (Montes, supra, 81 Cal.App.5th at p. 1140, quoting Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122 (Osborn).) “In other words, ‘the obviousness of the condition and its dangerousness ... will not negate a duty of care when it is foreseeable that, because of necessity or other circumstances, a person may choose to encounter the condition.’ ” (Ibid., quoting Jacobs, supra, 14 Cal.App.5th at p. 447.)
Courts have found it was foreseeable that a plaintiff would choose to encounter an obviously dangerous condition when the plaintiff’s employment required him to walk across an area to complete his work. (Montes, supra, 81 Cal.App.5th at p. 1140, citing Osborn, supra, 224 Cal.App.3d at pp. 109–110, 123 & Florez v. Groom Development Co. (1959) 53 Cal.2d 347, 358–359.) In addition, the court in Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1185, “determined there was a practical necessity for the plaintiff to walk across wet pavement because the pavement was the ‘principal if not sole access way from the street to defendant's building, which housed a government office serving the public.’ ” (Ibid., quoting Jacobs, supra, 14 Cal.App.5th at pp. 447–448.)
DISCUSSION
A. The complaint
The complaint alleges the following:
Defendants were the owners, lessors, sub-lessors, managing agents, landlords, renters, managers, operators, marketers, inspectors, maintainers, and/or controllers, of a commercial property located at 28901 S. Western Avenue, Rancho Palos Verdes, State of California, 90275 (the “premises”), to which the general public is invited to come.
On January 18, 2020, Lugo was lawfully on the premises to purchase miscellaneous items when, suddenly and without warning, she tripped due to the dangerous distribution of the premises and fell violently to the floor, causing her to sustain bodily injuries requiring medical attention and treatment.
Defendants knew or should have known in the exercise of reasonable care that the structures and/or components and/or other parts of the premises were in a dangerous and defective and unsafe condition and a menace to Lugo and others lawfully on the premises. Due to Defendants’ negligence, carelessness, and recklessness, a dangerously placed shelf that was not properly installed and maintained in the premises caused Lugo’s injuries.
Lugo and Frausto are married. Defendants’ actions entitle Frausto to assert a loss of consortium claim against Defendants.
B. The motion
1. Marshalls has carried its initial burden of proving the allegedly dangerous condition was open and obvious, shifting the burden to Plaintiffs
Marshalls presented the following evidence: When Lugo visited Marshalls before the accident in 2018 and 2019, she noticed the platforms underneath the furniture. (Lugo depo p. 28.) The platforms could be seen from a distance. (Lugo depo pp. 29-30; see Opposition p. 14.) The platform on which Lugo tripped was grey, while the floor on which the platform rested was a different color. (Lugo depo p. 85; Lugo’s response to special interrogatory 16.) The platforms were four feet wide with a height of between 5 3/8 and 5 1/2 inches. (Froom dec. ¶¶ 4-5.)
Based on this evidence, Marshalls has carried its initial burden of proving the allegedly dangerous condition was open and obvious, relieving Marshalls of any duty to Lugo. The burden shifts to Plaintiffs.
2. Plaintiffs have not raised a triable issue of fact
In opposition, Plaintiffs submit the declaration of Philip Rosescu, a forensic engineer serving as Plaintiffs’ safety and liability expert. Rosescu opines that, “[f]rom a human factors standpoint, . . . the subject display platform would have been relatively difficult to perceive at the time of the incident. While considerable enough in height to cause a trip or misstep, the height differential was not easily perceivable.” (Rosescu dec. ¶ 9.) This was because “[t]he attention of customers within a retail environment is intentionally redirected away from the walking surface and towards merchandise such as the furniture atop the display platforms. Moreover, plaintiff describes tripping on the subject merchandise platform after attempting to take a step backwards to look at merchandise behind her, creating a line of site issue between Plaintiff and the platform, which ultimately caused her fall. The combination of these factors would have made the height differential created by the display platform difficult to perceive at the time of the incident and therefore caused and/or contributed to Plaintiff’s trip and fall incident.” (Rosescu dec. ¶ 9.)
“ ‘[T]he law does not accord to the expert's opinion the same degree of credence or integrity as it does the data underlying the opinion. Like a house built on sand, the expert's opinion is no better than the facts on which it is based.’ ” (County of Sacramento v. Workers’ Comp. Appeals Bd. (2013) 215 Cal.App.4th 785, 797, quoting Kennemur v. State of California (1982) 133 Cal.App.3d 907, 923.) Here, Rosescu’s opinion does not raise a triable issue of fact because his reasons do not include facts that support the opinion. Rosescu's first reason – Marshalls’ assumed attempt to direct customers’ attention away from the walking surface and toward merchandise – is speculative and lacks evidentiary support. Rosescu's second reason – Lugo’s backwards step to look at merchandise behind her – has nothing to do with whether the platform was open and obvious but shows only that Lugo was looking somewhere else. The fact that a person looks away from an open and obvious condition does not make the condition any less open and obvious.
Plaintiffs also assert that the platforms and floor were the same color and that they “nearly disappear with all the furniture covering them.” (Opposition p. 14.) But Plaintiffs rely on their counsel’s declaration to support these factual assertions. (See Farahi dec. ¶¶ 9, 13.) Plaintiff’s counsel has not established that he is an expert or that he has personal knowledge of the facts of the accident. Therefore, his assertions do not raise a triable issue of fact.
The Court concludes that Plaintiffs have not raised a triable issue of fact concerning (1) whether the allegedly dangerous condition was open and obvious or (2) whether it was foreseeable that, because of necessity or other circumstances, a person might choose to encounter the open and obvious condition. As a result, Marshalls did not owe Lugo a duty to remedy or warn of the condition. The Court therefore grants Marshalls’ motion for summary adjudication of Plaintiffs’ negligence and premises liability claims.
CONCLUSION
The Court GRANTS the motion for summary adjudication filed by Defendant Marshalls of CA, LLC and summarily adjudicates the claims for negligence and premises liability of Plaintiffs Alicia Lugo and German Frausto.
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.