Judge: Lisa R. Jaskol, Case: 21STCV93872, Date: 2023-07-10 Tentative Ruling

Case Number: 21STCV93872    Hearing Date: July 10, 2023    Dept: 28

Having considered the moving, opposing, and reply papers, the Court rules as follows. 

BACKGROUND 

On February 1, 2021, Plaintiff Erick Martinez (“Plaintiff”) filed this action against Defendants Vafa Properties LLC (“Vafa”), Baskin-Robbins LLC (“BR”) and Baskin-Robbins USA LLC (“BR USA”) for general negligence and premises liability. Plaintiff later amended the complaint to include Defendant Baskin-Robbins Franchising LLC (“BRF”). 

On August 23, 2022, Vafa filed an answer and a Cross-Complaint against Cross-Defendants Roes 1-20 for indemnification, apportionment of fault, express indemnification and declaratory relief. 

On August 26, 2022, BR, BR USA and BRF filed an answer. 

On September 29, 2022, Plaintiff filed an ex parte application to substitute Hannah Louise Miranda for Erick Martinez.  The application stated that Erick Martinez passed away on July 26, 2020 and Hannah Louise Miranda, the decedent’s surviving wife, was the successor in interest of the Estate of Erick Martinez.  Defendants opposed the application and asked the Court to dismiss the case. 

On October 3, 2022, the Court granted the ex parte application and ordered that Hannah Louise Miranda be substituted as Successor-in-Interest for the deceased Plaintiff, Erick Martinez. 

On March 1, 2023, Defendants filed a motion for summary judgment or, in the alternative, summary adjudication to be heard on July 10, 2023. On June 26, 2023, Plaintiff filed an opposition.  On July 5, 2023, Defendants filed a reply. 

Trial is scheduled for August 11, 2023. 

PARTIES’ REQUESTS 

Defendants request that the Court grant summary judgment or, in the alternative, summary adjudication. 

Plaintiff requests that the Court 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) [motion for summary judgment]; see Code Civ. Proc., § 437c, subd. (f)(2) [motion for summary adjudication “shall proceed in all procedural respects as a motion for summary judgment”].) 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 of the evidence and all of 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.)  

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just. . . ."  (Code Civ. Proc., § 437c, subd. (h).)  

B.   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.)  

DISCUSSION 

In the complaint filed February 1, 2021, Plaintiff alleged the following: On or about February 1, 2019, Plaintiff was lawfully on Defendants’ premises at or near 5039 Whittier Blvd., Los Angeles, CA 90022. While Plaintiff was walking in the parking lot, he stepped on debris or similar objects on the ground, causing him to trip and fall.  As a result, he suffered severe injury and pain. Defendants had sole and exclusive custody and control of the building and activities occurring at the building and owed a duty to Plaintiff to keep the premises in a safe condition.  Defendants were negligent, careless and reckless in the ownership, care, control, maintenance, operation, leasing, management, caretaking, and repairing of the premises because they allowed the premises to remain in a dangerous and unsafe condition.  In addition, Defendants were negligent, careless and reckless because they failed to properly warn of the dangerous conditions. Defendants knew or should have known that the debris on the ground created a dangerous and defective and unsafe condition. 

          In the separate statement supporting their motion for summary judgment, Defendants assert “[t]here is no admissible evidence” of the following: 

·       That Plaintiff tripped and fell on property owned or controlled by Defendants [as] a result of a dangerous condition. 

·       To support Plaintiff’s cause of action for negligence against Defendants. 

·       To support Plaintiff’s cause of action for premises liability against Defendants. 

·       That a dangerous condition existed at or near property owned or controlled by Defendants on the date of the incident. 

·       That Defendants had actual or constructive notice of the alleged dangerous condition, identified in Plaintiff’s Complaint as “debris and/or other similar object” and in discovery as “trash,” at or near the property owned or controlled by Defendants on the date of the incident. 

·       That Defendants were negligent in the use or maintenance of property owned or controlled by Defendants on the date of the incident. 

·       That Defendants breached a duty of care owed to Plaintiff. 

          To support these assertions, Defendants submitted Plaintiff’s January 6, 2023 responses to discovery requests asking Plaintiff to state all facts on which she relied in denying requests to admit that she had no facts to support specified contentions in her complaint. [1]

 

Plaintiff’s discovery responses stated: 

1.    Defendants owned, maintained, and/or controlled the premises and therefore owed a duty of reasonable care in order to ensure the premises were in a safe condition. 

2.    Defendants failed to properly warn, secure, block off the area, and put up any caution signs and/or warning devices alerting customers about a dangerous condition. 

3.    Defendants allowed there to be trash on the walkway to the parking lot, on which anyone could slip and fall. 

4.    Defendants were negligent with regards to the incident. 

5.    The incident was a result of trash allowed to remain on the ground. Thus, Defendants were reckless and careless with regards to the incident. 

Plaintiff stated that “incident photographs and [Decedent’ Erick Martinez’s] medical reports” supported some of these discovery responses.  Plaintiff did not identify specific photographs or medical reports.  For other responses, Plaintiff stated that she conducted a diligent search and reasonable inquiry but had no documents in her custody, control or possession responsive to the request. 

In support of their assertion that no admissible evidence supports Plaintiff’s claims, Defendants also submitted excerpts from the February 7, 2023 deposition of successor-in-interest Hannah Louise Miranda showing she was not present when the incident occurred and has little information about it. 

As noted, in moving for summary judgment, “‘[t]he defendant may . . . 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.’” (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 106-107, quoting Aguilar, supra, 25 Cal.4th at p. 855.) “If plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate answers that restate their allegations, or simply provide laundry lists of people and/or documents, the burden of production will almost certainly be shifted to them once defendants move for summary judgment and properly present plaintiffs' factually devoid discovery responses.”  (Id. at p. 107.) 

Here, Plaintiff responded to Defendants’ discovery with answers that merely restated the allegations in Plaintiff’s complaint.  Defendants therefore carried their initial burden of presenting evidence that no triable issues of fact exist.  (See Aguilar, supra, 25 Cal.4th at p. 850.) The burden now shifts to Plaintiff. 

Plaintiff argues that summary judgment is premature because her claims continue to be explored in discovery.  Plaintiff states she was named successor-in-interest on or about October 3, 2022 and has not yet been able to conduct an inspection of the premises.[2]  In addition, Plaintiff contends she needs additional time to oppose the summary judgment motion to “conduct additional discovery which includes taking an inspection of the premises, defendant’s PMK depositions, and conducting additional written discovery related to the condition of the premises.” 

The alleged incident at issue in this case took place on February 1, 2019.  The lawsuit was filed on February 1, 2021.  Plaintiff has not explained why – despite the passage of time, her lack of knowledge about the incident, and her failure to obtain useful information to date – she believes further discovery will yield information that supports her claims. The Court finds that Plaintiff has not shown that “facts essential to justify opposition may exist but cannot, for reasons stated, be presented . . . .”  (Code Civ. Proc., § 437c, subd. (h).)  

In addition, Plaintiff has not presented evidence that raises a triable issue of material fact.  Therefore, the Court grants the motion for summary judgment. 

CONCLUSION 

The summary judgment motion of Defendants Vafa Properties LLC, Baskin-Robbins LLC, Baskin-Robbins USA LLC and Baskin-Robbins Franchising LLC is GRANTED. 

Moving parties are ordered to give notice of this ruling. 

Moving parties are ordered to file the proof of service of this ruling with the Court within five days.

[1] Plaintiff contends the discovery was “not directed towards Plaintiff as Suc[c]essor-In-Interest to Decedent.”  (Opposition p. 5.)  Successor-in-interest Hannah Louise Miranda verified the discovery responses.

[2] In addition, Plaintiff contends she needs additional time to oppose the summary judgment motion “due to Defendants’ belatedly filed Declaration [of Jacqueline M. Almodovar] . . . .”  In fact, Defendants attached a declaration from Jacqueline M. Almodovar to their motion for summary judgment, filed March 1, 2023.  The subsequent declaration by Jacqueline M. Almodovar, filed June 22, 2023, did not provide any new information warranting a continuance.