Judge: Martha K. Gooding, Case: 21-01198645, Date: 2023-06-12 Tentative Ruling

Motion for Summary Judgment and/or Adjudication

 

The Motion by Defendant and Cross-Defendant Habib Kharrat (“Kharrat”) for summary judgment or summary adjudication on the Complaint filed by Plaintiff Leslie Johnson (“Plaintiff”) is DENIED.

 

Kharrat’s Motion for Summary Judgment, or Summary Adjudication, on the Cross-Complaint filed by Defendant and Cross-Complainant Stater Bros. Market (“Market”) also is DENIED.

 

Market’s evidentiary objection no. 3 is sustained; the remaining objections are overruled.

 

As an initial matter, the Court notes Kharrat paid only one filing fee, even though he effectively filed two motions in a single document:  his motion seeks both summary judgment/adjudication on Plaintiff’s Complaint and summary judgment/adjudication on Market’s Cross-Complaint.  Accordingly, Kharrat is ordered to pay an additional filing fee of $500 within 15 days.

 

“[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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A “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. . . .” (Ibid.)

 

“A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) “A court identifies the issues framed by the pleadings, determines whether the moving party’s showing has established facts which negate the opponent’s claim and justify a judgment in the moving party’s favor, and if the summary judgment motion is meritorious on its face, the court will look to whether the opposition demonstrates there are triable, material factual issues.” (Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1054.) The opposing party must show by reference to specific facts the existence of a triable issue as to that cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)

 

A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.) Alternatively, a moving defendant can show that a cause of action cannot be established by submitting evidence, such as discovery admissions and responses, that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff's lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; see Sheiding v. Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80-81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information].)

 

Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) To meet this burden, the plaintiff must present substantial and admissible evidence creating a triable issue. (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Theoretical, imaginative, or speculative submissions are insufficient to stave off summary judgment. (Doe v. Salesian Society (2008) 159 Cal.App.4th 474, 481; Bushling v. Fremont Med. Center (2004) 117 Cal.App.4th 493, 510.)

 

A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff.  (Code Civ. Proc. §437c(f)(1).)  “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Id.)

 

To move for summary adjudication, the party moving must specify in its notice of motion and motion the claim, causes of action, or issues it is moving on.  CRC 3.1350.  The court has no power to adjudicate others.  (Maryland Cas. Co. v. Reeder (1990) 221 Cal. App. 3d 961, 974 n. 4; Homestead Savings v. Superior Court (1986) 179 Cal. App. 3d 494, 498.)

 

The noticed issues for summary adjudication must then be stated, verbatim, in the separate statement – with separately stated undisputed facts for each noticed issue.  (CRC 3.1350(b), (d).)

 

Failure to comply with the separate statement requirement constitutes ground for denial of the motion, in the court's discretion.  Code Civ. Proc. § 437c(b)(1).

 

Plaintiff’s Complaint alleges two causes of action against Defendants – premises liability and general negligence.

 

Market’s Cross-Complaint asserts four causes of action, including a second cause of action for equitable indemnity and a third cause of action for contribution.

 

Kharrat’s Separate Statement Is Insufficient for Summary Adjudication

 

Kharrat’s Separate Statement fails to support any motion for summary adjudication.  He has not broken down his material facts by the causes of action as to which he purports to move for summary adjudication.

 

Accordingly, the Court will address each of Kharrat’s motions as only a motion for summary judgment.

 

Application and Discussion of Substantive Law for MSJ on Complaint

 

“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, 1158.) 

 

          Premises Liability

 

The elements of a cause of action for premises liability are: (1) the defendant owned, leased, or occupied the property; (2) the defendant was negligent in the use or maintenance of the property; (3) the plaintiff was harmed, and (4) the defendant’s negligence was a substantial factor in causing the plaintiff’s harm.  (CACI 1000.) 

 

Premises liability is a form of negligence.  It is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.  (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal. App. 3d 1611, 1619.)  A person who owns or controls property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. (CACI 1001.)  “To comply with this duty, a person who controls property must inspect the premises or take other proper means to ascertain their condition and, if a dangerous condition exists that would have been discovered by the exercise of reasonable care, has a duty to give adequate warning of or remedy it.”  (Staats v. Vintner's Golf Club, LLC (2018) 25 Cal. App. 5th 826, 833 (internal quote marks and citations omitted). )

          Negligence

 

The elements of negligence are: (1) defendant’s legal duty to conform to a standard of conduct to protect the plaintiff; (2) defendant failed to meet this standard of conduct; (3) causation; (4) damages.  (Ladd v. County of San Mateo (1996) 12 Cal. 4th 913, 917.)

 

Here, Kharrat argues he cannot be liable for premises liability because he did not own or control the property where Plaintiff was injured, he was simply another customer.  [Kharrat Decl. (ROA #146), ¶¶ 3, 4; Separate Statement of Material Facts (“SSUMF,” ROA #141), UMF no. 4.]  Plaintiff does not dispute this. [Plaintiff’s Response to Separate Statement (ROA #180), at UMF no. 4.]

 

Plaintiff argues that Kharrat can still be “jointly and severally” liable for premises liability because of his contribution to the dangerous condition.  But the only case cited by Plaintiff, Kramer v. Gaddis (1976) 56 Cal. App. 3d 837, 843, is a negligence case and does not discuss premises liability.  The Court need not decide this issue, however, because – as discussed below – Plaintiff has shown at least a triable issue of fact as to her negligence claim against Kharrat and summary judgment is denied on that basis.

 

As for Plaintiff’s negligence claim against him, Kharrat argues he cannot be held liable to Plaintiff because he did not breach any duty of care to her in connection with the water and/or ice in front of the ice machine.  He contends it was Market’s responsibility to keep the premises hazard free and Kharrat had no duty to warn about or correct any hazards he might have observed.  In his brief, Kharrat asserts he also relied on Market to do the clean-up of any ice and water, but there is no evidence identified in his separate statement on this point.

 

Kharrat acknowledges the general rule that everyone owes a duty to use reasonable care to prevent harm to themselves or to others. (See CACI No. 401) “Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want or ordinary care of skill in the management of his or her property or person….” (Cal. Civ. Code § 1714(a).)

 

He denies, however, that his conduct breached this duty.  Kharrat describes his conduct as retrieving a bag of ice from the ice freezer located at the front of the premises, touching it to the ground, then putting it into his cart. [SSUMF Nos 8-9.]  But Plaintiff has presented evidence that Kharrat’s conduct was more than this.  Pointing to the video and Kharrat’s deposition testimony, Plaintiff contends that Kharrat retrieved a bag of ice, bounced it on the floor next to the mat, and three ice cubes fell out.  Plaintiff further contends the CCTV recording shows Kharrat looked down at the ice or leftover residue when he left the area.  [Plaintiff’s Exhibit 13,CCTV video footage labeled “136 – PTZ; Exhibit 12, Deposition of Habib Kharrat at p. 8:5-25; p. 9:1-9; p. 12:20-13:1 and p. 26:6-27:18; Exhibit 6, Plaintiff's Requests For Admissions to Defendant Habib Kharrat, Set No. One, Request Nos. 8, 9, 10. Exhibit 7, Defendant Habib Kharrat’s Response to Plaintiff's Requests For Admissions, Set No. One, Response Nos. 8, 9, 10.]

 

If the jury finds that the video reflects Kharrat spilling ice on the floor, seeing it, and leaving it there without warning to Market’s employees, it may also find that Kharrat breached a duty of care by failing to address a hazard that he created.

 

It is a basic precept of tort law that each person has a duty to exercise ordinary care and is liable for injuries resulting from a failure to act reasonably under the circumstances—Civil Code section 1714 reflects this default rule. (Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 771, 122 Cal.Rptr.3d 313, 248 P.3d 1170 (Cabral).)3 Courts depart from this general rule only where a statute creates an exception, or the policy considerations articulated in Rowland v. Christian (1968) 69 Cal.2d 108, 70 Cal.Rptr. 97, 443 P.2d 561 (Rowland) require the courts to create one. (Cabral, at p. 771, 122 Cal.Rptr.3d 313, 248 P.3d 1170.)4 Applying these concepts, the Cabral court concluded that a major grocery store chain owed a common law duty of reasonable care to fellow motorists and therefore could be liable for negligence following an accident that occurred alongside an interstate highway after one of its truck drivers pulled over to eat a snack. (Id. at p. 783, 122 Cal.Rptr.3d 313, 248 P.3d 1170.) No considerations of foreseeability or extrinsic policy under Rowland justified departure from the general rule that the grocery chain owed other motorists a duty of care. (Cabral, at pp. 774−784, 122 Cal.Rptr.3d 313, 248 P.3d 1170.)

 

While broad, the default duty rule also “has limits.” (Brown, supra, 11 Cal.5th at p. 214, 276 Cal.Rptr.3d 434, 483 P.3d 159.) It typically applies only where it is the defendant who created the risk of harm to the plaintiff; “[t]he law does not impose the same duty on a defendant who did not contribute to the risk that the plaintiff would suffer the harm alleged.” (Ibid.) Even where a person discovers another in peril and is in a position to help, that person is generally not liable in tort for failing to protect the potential victim if he or she did not contribute to creating the risk. (Ibid.; see Williams v. State of California (1983) 34 Cal.3d 18, 23, 192 Cal.Rptr. 233, 664 P.2d 137 [“As a rule, one has no duty to come to the aid of another. A person who has not created a peril is not liable in tort merely for failure to take affirmative action to assist or protect another unless there is some relationship between them which gives rise to a duty to act.”].) Despite criticism that this “no-duty-to-protect” rule produces seemingly repugnant outcomes, it is grounded in various policy reasons. (Brown, at p. 215, 276 Cal.Rptr.3d 434, 483 P.3d 159.)

 

(Hassaine v. Club Demonstration Services, Inc. (2022) 77 Cal.App.5th 843, 851–852 [emphasis added].)

 

The foreseeability of someone slipping and falling on the ice dropped in a well-travelled area of the store is manifest.

 

Kharrat argues that Plaintiff should have been alerted to the ice on the floor, or at least the possibility of it, because of the yellow caution cone that was there.  This does not negate the possibility of a jury finding Kharra was negligent.  It would be up to the jury to balance the different parties’ degree of negligence and allocate responsibility.

 

In short, whether or not Kharrat met his initial burden and shifted the burden of proof to Plaintiff, there is at least a triable issue as to whether Kharrat breached a duty of care to Plaintiff.

 

Accordingly, Kharrat’s Motion for Summary Judgment on Plaintiff’s Complaint is DENIED.

 

 

Application and Discussion as to MSJ on Cross-Complaint

 

Neither Kharrat nor Market discusses the claims in Market’s Cross-Complaint or their elements to analyze Kharrat’s Motion for Summary Judgment on Market’s Cross-Complaint. Essentially, the underlying premise of Kharrat’s Motion is that if he prevails against Plaintiff’s Complaint – that is, he establishes there is no triable issue that he was negligent—then he prevails on the Cross-Complaint as well.  Market’s premise is the same in reverse:  if Kharrat could be liable to Plaintiff then there is necessarily a triable issue whether he is liable under the Cross-Complaint as well. 

 

Again, the video (this time presented as Ex. A to Market’s Compendium of Evidence (“COE,” ROA #202) is the central evidence.  Market also points to much of the same Kharrat deposition testimony.  [COE, Ex. D.]

 

          Equitable Indemnity

 

“The elements of a cause of action for indemnity are (1) a showing of fault on the part of the indemnitor and (2) resulting damages to the indemnitee for which the indemnitor is ... equitably responsible. [Citation.]” (Expressions at Rancho Niguel Assn. v. Ahmanson Developments, Inc., (2001) 86 Cal.App.4th 1135 at p. 1139. 

 

Equitable indemnity applies only among defendants who are jointly and severally liable to the plaintiff.  GEM Developers v. Hallcraft Homes of San Diego, Inc.  (1989) 213 Cal.App.3d 719.  Further, with limited exception, there must be some basis for tort liability against the proposed indemnitor.  Munoz v. Davis (1983) 141 Cal.App.3d 420, 425. 

 

          Contribution (UDR)

 

The right of contribution arises when a co-obligor pays more than his or her share of a debt or obligation.  Hosking v. Spartan Properties, Inc. (1969) 275 Cal.App.2d 152, 157. 

 

Here, because the evidence presented (COE, Ex. A and D) shows a triable issue of fact whether Kharrat breached a duty of care to Plaintiff, there remains a triable issue of fact whether he is jointly and severally liable to her and what his responsibilities, relative to Market, for Plaintiff’s injuries are.

 

For this reason, Kharrat’s Motion for Summary Judgment on Market’s Cross-Complaint is DENIED.

 

Plaintiff is ordered to give notice.