Judge: Lisa R. Jaskol, Case: 22STCV11131, Date: 2024-02-27 Tentative Ruling

Case Number: 22STCV11131    Hearing Date: March 21, 2024    Dept: 28

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

BACKGROUND 

On April 1, 2022, Plaintiff Chavis Harris (“Plaintiff”) filed this action against Defendants KMS Enterprises Inc., Shell Oil Company (“Shell”), C.F.Y., LLC (“CFY”), and Does 1-50 for general negligence and premises liability. 

On May 20, 2022, Shell filed an answer. On June 1, 2022, Defendants KSM Enterprises, Inc., erroneously sued as KMS Enterprises Inc. (“KSM”), and CFY filed an answer. 

On December 14, 2024, Shell filed a motion for summary judgment or, in the alternative, summary adjudication to be heard on March 21, 2024. On March 6, 2024, Plaintiff filed an opposition. On March 15, 2024, Shell filed a reply. 

Trial is currently set for August 19, 2024. 

PARTIES’ REQUESTS 

Shell asks the Court to grant summary judgment or, in the alternative, summary adjudication. 

Plaintiff asks the Court to deny the motion. 

REQUEST FOR JUDICIAL NOTICE: Granted 

EVIDENTIARY OBJECTIONS 

Plaintiff’s objections to Declaration of Nicole Buimer: Sustained 

Shell’s objections: 

          Sustained: 1-3

          Overruled:   4 

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.)  “[A] court cannot grant summary judgment based on inferences that are contradicted by other inferences or evidence. And a triable issue of fact exists when the evidence permits a reasonable trier of fact to find a contested fact in favor of the party opposing the motion.  [Citation.] Put slightly differently, a summary judgment may not be granted unless the evidence is incapable of supporting a judgment for the losing party.” (California-American Water Co. v. Marina Coast Water Dist. (2022) 86 Cal.App.5th 1272, 1296.) 

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.) 

“A defendant's control over property is sufficient to create a duty to protect owed to persons using the property.” (Colonial Van & Storage, Inc. v. Superior Court (2022) 76 Cal.App.5th 487, 497 (Colonial Van & Storage), citing Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1162, 1166; Soto v. Union Pacific Railroad Co. (2020) 45 Cal.App.5th 168, 177 (Soto) [“the rationale being that whoever has the means to control the property can take steps to prevent the harm”].) “Conversely, absent any control of the property, a defendant cannot be held liable for a dangerous condition on that property.” (Ibid., citing Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1241 [“ ‘[t]he law does not impose responsibility where there is no duty because of the absence of a right to control’ ”]; Soto, supra, 45 Cal.App.5th at p. 177; Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1084 [generally, there is no right to control another's property].) 

“ ‘In premises liability cases, summary judgment may properly be granted where a defendant unequivocally establishes its lack of ownership, possession, or control of the property alleged to be in a dangerous or defective condition.’ ” (Seaber v. Hotel Del Coronado (1991) 1 Cal.App.4th 481, 487, quoting Gray v. America West Airlines, Inc. (1989) 209 Cal.App.3d 76, 81.) 

DISCUSSION 

A.   The complaint 

The complaint alleges that on or about September 15, 2020, while Plaintiff was walking near the entrance area of Defendants’ premises at or near 2589 N. Lakewood Boulevard in Long Beach, California, Plaintiff “was struck by an unmarked and/or unsecured fire extinguisher box and/or cabinet and/or similar object,” injuring him. 

B.   Undisputed facts 

Plaintiff alleges that, on September 15, 2020, he sustained personal injuries at a gas station located at 2589 N. Lakewood Blvd., Long Beach, CA 90815.  Plaintiff asserts causes of action against Shell for negligence and premises liability. 

CFY owned the property and leased it to KSM.  KSM operated the Shell gas station where the incident occurred.  KSM purchased gas for the gas station from RM Parks.  RM Parks and Equilon Enterprises LLC dba Shell Oil Products US entered into an agreement effective February 1, 2020.  KSM’s policies for inspecting the area where the incident occurred consisted of maintenance of outdoor areas, including observation of conditions, sweeping, cleaning, and painting.  

The term “Buyer’s Outlet” includes the Shell gas station located at 2589 N. Lakewood Blvd., Long Beach, CA 90815.  Shell required that Buyer’s Outlets, including the Shell gas station at issue here: 

·       be kept in good operating condition and repair

·       keep driveways, sidewalks, and other landscaped areas in a neat and orderly appearance free from weeds, debris, snow, ice, and rubbish

·       be kept clear of vehicles, other mobile equipment, and obstructions that restrict traffic flow, endanger customer safety, or detract from appearance

·       not be used to sell, lease, or store motor vehicles, trailers, boats, or other mobile equipment without Shell’s consent 

Shell had the right to enter the property at all reasonable times to inspect the facilities and verify compliance with the agreement.  Shell has inspected the property. 

C.   Legal arguments 

1.    Control 

Shell asserts that it is entitled to summary judgment because it did not own, operate, or control the property at the time Plaintiff was injured.  It is undisputed that Shell did not own or operate the property.  The parties dispute whether Shell exercised control. 

According to Shell, its “only involvement with [the gas station] is the sale of fuel to the wholesaler and an agreement to allow for the wholesaler for the station to use the Shell brand.”  (Memorandum of Points and Authorities p. 11.) 

But it is undisputed that Shell required that the gas station (1) be kept in good operating condition and repair, (2) keep driveways, sidewalks, and other landscaped areas in a neat and orderly appearance free from weeds, debris, snow, ice, and rubbish, (3) be kept clear of vehicles, other mobile equipment, and obstructions that restrict traffic flow, endanger customer safety, or detract from appearance, and (4) not be used to sell, lease, or store motor vehicles, trailers, boats, or other mobile equipment without Shell’s consent.  Moreover, Shell had the right to enter the property at all reasonable times to inspect the facilities and verify compliance with the agreement. 

Based on these undisputed facts, Shell has not carried its initial burden on summary judgment of showing it did not exercise control over the premises as a matter of law.  Therefore, the Court denies Shell's request for summary judgment. 

2.    Plaintiff’s negligence claim 

In the alternative, Shell asks the Court to grant summary adjudication of Plaintiff’s negligence claim because Shell did not owe Plaintiff a duty as a matter of law.  However, Shell’s duty argument is based on its assertion that it did not own, operate, or control the property.  The Court has found that Shell has not carried its initial summary judgment burden on this issue.  The Court denies the request to summarily adjudicate this claim. 

3.    Plaintiff’s premises liability claim 

Shell asks the Court to grant summary adjudication of Plaintiff’s premises liability claim because Shell did not own or control the property.  The Court has found that Shell has not carried its initial summary judgment burden on this issue.  The Court denies the request to summarily adjudicate this claim. 

CONCLUSION 

The Court DENIES Defendant Shell Oil Company’s motion for summary judgment or, in the alternative, summary adjudication. 

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.