Judge Lynette Gridiron Winston, Case Number: 23PSCV01034, Date: 2024-03-06 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 23PSCV01034, Date: 2024-03-06 Tentative Ruling

CASE NAME: Roberto Lombera Godinez, et al. v. Diana Beatriz Martinez-Umana, et al.

Defendant Cardenas Markets LLC’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication

The Court DENIES Defendant Cardenas Markets LLC’s motion for summary judgment. The Court GRANTS Defendant Cardenas Markets LLC’s motion for summary adjudication as to the Second and Third Causes of Action.

Defendant Cardenas Markets LLC is ordered to give notice of the Court’s ruling within five calendar days of this order.

This is a personal injury action. On April 10, 2023, plaintiffs Roberto Lombera Godinez (Godinez) and Margarita Terrones Munoz (Munoz) (collectively, Plaintiffs) filed this action against defendants Diana Beatriz Martinez-Umana, Shalabi Enterprises Partners, Shalabi Enterprises, LLC, Farid Othman Shalabi, individually and as co-trustee of the Farid Othman Shalabi and Fatima Shalabi 1990 Trust dated June 26, 1990, Fatima Shalabi, individually and as co-trustee of the Farid Othman Shalabi and Fatima Shalabi 1990 Trust dated June 26, 1990, Jose Othman Shalabi, individually and as co-trustee of the Jose Othman Shalabi and Esidra Shalabi 1990 Trust dated June 26, 1990, Walid Othman Shalabi, individually and as co-trustee of the Walid Othman Shalabi and Amani Shalabi 1990 Trust dated June 26, 1990, Cardenas Markets LLC (Cardenas), Tacos La Guera Al Vapor, Inc., City of Pomona, County of Los Angeles, the State of California, the State of California Department of Transportation, Caltrans (collectively, Defendants) and Does 1 to 100, alleging causes of action for motor vehicle negligence, general negligence, premises liability, dangerous condition of public property, and loss of consortium.[1]

On December 21, 2023, Cardenas filed a motion for summary judgment, or in the alternative, summary adjudication. The motion is unopposed.

The purpose of a motion for summary judgment or summary adjudication “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. Atlantic 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, italics in original and quoting Code Civ. Proc., § 437c, subd. (c).) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67, citing FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381-382.)

“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 or summary adjudication “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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.)

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.” (Code Civ. Proc., § 437c, subd. (p)(2).) To establish a triable issue of material fact, the party opposing the motion “shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Id.; see also Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 166.)

Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.)

The Court notes that Cardenas’ initial notice of lodgment filed with the moving papers on December 21, 2023, did not contain any exhibits attached to it. (Notice of Lodgment (12/21/23).) Cardenas appears to have realized this when re-filing the notice of lodgment on January 30, 2024, which then contained the exhibits. (Notice of Lodgment (1/30/24).) Normally, the supporting papers, such as exhibits, need to be filed with the moving papers. (Code Civ. Proc., § 437c, subd. (a)(2).) However, the Court retains discretion to consider late-filed supporting papers. (See Michael H. v. Gerald D. (1987) 191 Cal.App.3d 995, 1004 [trial court did not abuse discretion and there was no prejudice to the opposing party when trial court considered late-filed separate statement]; Weiss v. Chevron, U.S.A., Inc. (1988) 204 Cal.App.3d 1094, 1099 [trial court had discretion to consider late-filed additional declarations as long as the opposing party was given adequate notice and an opportunity to respond].)

The Court exercises its discretion to consider Cardenas’ late-filed notice of lodgment, as it appears Plaintiffs were given adequate notice since the initial notice of lodgment identified the documents intended for the motion, and Plaintiffs still had approximately three weeks to review the exhibits before submitting an opposition by February 21, 2024. Given the absence of any opposition to this motion, Plaintiffs have not presented any evidence of prejudice. Accordingly, the Court will still consider the exhibits submitted in support of the motion, but admonishes Cardenas to be careful about such important details going forward.

The Court GRANTS Cardenas’ request for judicial notice. (Evid. Code § 452, subd. (d).) However, the Court takes judicial notice of the foregoing documents only as to “the existence, content and authenticity of public records and other specified documents”; it does not take judicial notice of the truth of the factual matters asserted in those documents. (Dominguez v. Bonta (2022) 87 Cal. App. 5th 389, 400.)

Cardenas entered into a commercial lease agreement on November 14, 2006, for property located at 1645 Holt Avenue, Pomona, CA 91768. (UMF 4-5.) The building Cardenas is renting under the lease agreement is one of many in a commercial property that is set back from the street and separated by a public sidewalk, landscaped areas, and a parking lot. (UMF 6-7.) Under the lease agreement, the property owners own and control the common areas, whereas Cardenas only has a non-exclusive right to use the common areas. (UMF 8-9.)

The incident in question occurred on October 14, 2022, which involved a car driven by Defendant Diana Beatriz Martinez-Umana that veered off the road, jumped the curb, and struck a taco stand along with several customers. (UMF 1.) Plaintiff Godinez was one of those injured customers. (UMF 3.) The taco stand was owned and operated by Defendant Tacos Al Vapor La Guera, Inc., and it was located on the sidewalk along West Holt Avenue in the City of Pomona. (UMF 3.)

On May 25, 2023, Cardenas propounded initial written discovery on Plaintiffs, to which Plaintiffs responded and provided no facts to support Plaintiffs’ claim that Cardenas owed Plaintiffs a duty of care. (UMF 20-23.)

No Motion for Summary Judgment as to the Fifth Cause of Action for Loss of Consortium

Cardenas moves for summary judgment, or in the alternative, summary adjudication as to the Second Cause of Action for general negligence and the Third Cause of Action for premises liability. However, the Court notes that Cardenas failed to include the Fifth Cause of Action for loss of consortium in its motion, which is alleged against all of the Defendants, including Cardenas. (See Compl., ¶¶ 67-72.) A motion for summary judgment is supposed to dispose of the entire action as to that particular party. (See Code Civ. Proc., § 437c, subd. (a)(1).) Since Cardenas failed to include the Fifth Cause of Action for loss of consortium in its motion, the Court cannot award summary judgment.

Based on the foregoing, the Court DENIES Cardenas’ motion for summary judgment. The Court will proceed to assess Cardenas’ alternative motion for summary adjudication.

“To state a cause of action for negligence, a plaintiff must allege (1) the defendant owed the plaintiff a duty of care, (2) the defendant breached that duty, and (3) the breach proximately caused the plaintiff's damages or injuries.” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.) “A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper.” (Isaacs v. Huntington Mem'l Hosp. (1985) 38 Cal.3d 112, 134.)

Cardenas contends there is no triable issue of material fact here because it does not own, control, or possess the property where Plaintiff Godinez’s accident occurred. Cardenas contends it only operates a supermarket in the shopping center adjacent to the location of the accident, and that it does not have any ownership interest in the building or the shopping center from which it rents. (UMF 5.) Cardenas also contends that the facts clearly show the incident occurred on a public sidewalk, as the taco stand where Godinez was injured was located on Holt Avenue. (UMF 1-2.) Cardenas contends Plaintiffs’ written discovery responses confirm this as well. (UMF 3.)

Cardenas further argues that it does not control the property where the accident occurred, as it was only leasing the building in the adjacent shopping center, which lease did not include the entire property or extend to the sidewalk. (UMF 6.) Cardenas contends the lease agreement specifies the landlord owns and exclusively controls the shopping center property. (UMF 7-8.) Cardenas then contends there is no evidence showing that it created the hazardous condition that led to the accident, or that it undertook actions as though it controlled the public property at issue. (UMF 2, 13.) Cardenas also argues that Plaintiffs’ factually devoid discovery responses entitle it under Union Bank v. Superior Court (1995) 31 Cal.App.4th 573 to shift the burden of proof to Plaintiffs to establish the existence of a triable issue of material fact.

The Court finds Cardenas’ motion to be well-taken. The evidence presented clearly shows that Cardenas did not own or control the property where the accident occurred, as Cardenas was merely a lessee of commercial property adjacent to the sidewalk, which is public property. (UMF 2-13.) There is also no evidence to suggest that Cardenas did anything to create a hazardous condition that led to the accident, or that it acted like it controlled the public property at issue. (UMF 2, 13; see Lopez v. City of Los Angeles (2020) 55 Cal.App.5th 244, 256.) The Court finds Cardenas has met its moving burden, and the burden now shifts to Plaintiffs to establish the existence of a triable issue of material fact.[2]

Given Plaintiffs’ failure to oppose the motion, the Court finds Plaintiffs have failed to establish the existence of a triable issue of material fact. Accordingly, the Court GRANTS Cardenas’ motion for summary adjudication as to the Second Cause of Action.

“The elements of a cause of action for premises liability are the same as those for negligence. [Citation.]” (Nicoletti v. Kest (2023) 97 Cal.App.5th 140, 315 Cal.Rptr.3d 110, 115, internal quotation marks omitted.)

Plaintiffs’ premises liability cause of action is duplicative of the Second Cause of Action for general negligence, which was addressed above. Also, Cardenas’ arguments for this cause of action were combined into its arguments for general negligence. Therefore, the Court incorporates by reference its analysis with respect to the Second Cause of Action for negligence, and GRANTS Cardenas’ motion for summary adjudication as to the Third Cause of Action.

Defendant Cardenas Markets LLC is ordered to give notice of the Court’s ruling within five calendar days of this order.

[1] The Court notes that multiple cross-complaints have been filed in this action, but none of them are the subject of this motion.

[2] The Court declines to address the alternative argument of shifting the burden to Plaintiffs under Union Bank.