Judge Melvin D. Sandvig, Case 20STCV48569 2023-02-23 Tentative Ruling

Judge: Melvin D. Sandvig, Case: 20STCV48569, Date: 2023-02-23 Tentative Ruling

Case Number: 20STCV48569 Hearing Date: February 23, 2023 Dept: F47

Dept. F47

Date: 2/23/23

Case #20STCV48569

SUMMARY JUDGMENT

Motion filed on 12/7/22.

MOVING PARTY: Defendant Ralphs Grocery Company dba Ralphs

RESPONDING PARTY: Plaintiff Roni Sue Holloway

NOTICE: ok

RELIEF REQUESTED: An order granting summary judgment against Plaintiff Roni Sue Holloway on her claim for negligence against Ralphs.

RULING: The motion is granted.

SUMMARY OF FACTS & PROCEDURAL HISTORY

This action arises out of a trip and fall incident that occurred on 3/18/20 at or around 8:30 a.m. On that date, Plaintiff Roni Sue Holloway went to Ralphs grocery store to purchase groceries and other supplies. (Separate Statement (SS) 1). The store was in a shopping center near the intersection of Zelzah Avenue and Chatsworth Street in Granada Hills, California. (SS 2). At that time, Defendant Ralphs Grocery Company dba Ralphs (Ralphs) was following COVID-19 restrictions for grocery stores and operating under limited capacity, so it was common for prospective customers to wait in line for their turn to enter the store. (SS 3). When Plaintiff arrived, she walked toward the store entrance, and as she got closer, she observed a Ralphs employee standing at the entrance and admitting a limited number of people at a time. (SS 4). Plaintiff presumed that she also had to line up to enter the store and headed toward the end of the line without speaking with either Ralphs employees or any other person standing in line. (SS 4, 5, 7). No Ralphs employee communicated with or gestured at Plaintiff to line up. (SS 7). Plaintiff joined the line, which began from the store entrance and stretched through the shopping center, reaching the adjacent public sidewalk. (SS 4, 6). Plaintiff did not see any Ralphs personnel come out to check on people standing in line or directing/navigating any part of the line. (SS 8). While Plaintiff was standing at the end of the line, another prospective customer joined the line and suggested moving the line and continuing to line up on the adjacent public sidewalk. (SS 9). Plaintiff agreed with the suggestion and, while already standing on the sidewalk, she took a step backward, tripping and falling over a metal post protruding from the public sidewalk. (SS 9-10). The protruding metal post, which once was used to constitute a base of a traffic sign, was about two inches high and located on the edge of the sidewalk, closer to the curb. (SS 11-12). As a result of the fall, Plaintiff sustained injuries.

On 12/18/20, Plaintiff filed this action against the City of Los Angeles, Ralphs, and two other business entities located in the shopping center for: (1) Dangerous Condition of Public Property (against the City of Los Angeles); (2) Premises Liability (against Ralphs and the other two businesses) and (3) Negligence (against Ralphs and the other two businesses). Previously, Ralphs’ demurrer to the premises liability cause of action was sustained without leave to amend. (Stepanyan Decl. ¶4, Ex.B). Therefore, only the negligence cause of action remains against Ralphs.

Ralphs now moves for an order granting summary judgment against Plaintiff on her claim for negligence against Ralphs. Plaintiff has opposed the motion. Ralphs has filed a reply to the opposition.

ANALYSIS

Ralphs’ evidentiary objections (numbers 1-22) are sustained.

A “motion for summary judgment shall be granted if all of the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” See CCP 437c(c). A defendant has met its “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… . Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” See CCP 437c(p)(2).

The elements of a negligence cause of action are: (1) duty, (2) breach, (3) causation and (3) damages. Kesner (2016) 1 C5th 1132, 1142. Duty is a question of law; therefore, it may be resolved by summary judgment/adjudication. J.L. (2009) 177 CA4th 388, 396; Regents of University of California (Waters) (2010) 183 CA4th 755, 758.

Ralphs has submitted evidence which establishes that it owed no duty to Plaintiff and Plaintiff has failed to show that a triable issue of material fact exists with regard to whether Ralphs owed her a duty of care.

In her unverified complaint, Plaintiff alleged that she was “instructed and directed by [Ralphs’] agents and employees to line up on the sidewalk area along Zelza[h] Street.” (Complaint ¶8). Plaintiff further alleged that Ralphs “failed to provide any warnings or make any attempt to fix, remedy or make safe the sidewalk area where [it] instructed and directed Plaintiff to line up,” and that “in following those directions and instructions Plaintiff began to line up at that location and in doing so … tripped and fell over the [protruding metal post].” Id.

However, at her deposition, Plaintiff admitted that she did not speak with any Ralphs personnel, nor did Ralphs personnel communicate with or gesture at her to line up to enter the store. (SS 4, 5, 7). Additionally, Plaintiff admitted that while standing in line, she saw no Ralphs personnel come out to check on people standing in line or direct/navigate any part of the line in any manner. (SS 8). There were also no social distancing markers on the sidewalk or other signs to indicate that Ralphs intended people to line up on the sidewalk. (SS 13).

Plaintiff has admitted that she tripped and fell over a metal post protruding from a public sidewalk. (SS 6, 12 Complaint ¶¶7-8, 11, 26, 31, 32). In sustaining Ralphs’ demurrer to the premises liability cause of action without leave to amend, the Court found that Ralphs “did not own, control, or possess the property where Plaintiff fell.” (Stepanyan Decl. ¶4, Ex.B, 6/22/21 Minute Order, p.3). The Court also found that “[w]hile there would obviously be no duty to warn of a dangerous condition on a property defendant does not own, control, or possess absent some circumstance giving rise to that duty, the Court finds Plaintiff herein has pled a set of circumstances that would give rise to that duty: Defendant’s employee’s express instruction that Plaintiff was to stand at or near the dangerous condition.” (emphasis added) (Id. at p.2).

In contradiction to her unverified allegation that a Ralphs employee expressly instructed her to stand at or near the dangerous condition, as noted above, Plaintiff testified at her deposition that she never spoke to a Ralphs employee on the day of the incident and that no Ralphs personnel came out to check on people standing in line or to direct/navigate the line. (Complaint ¶8; SS 4-5, 13). In opposition to the instant motion, Plaintiff tries to create a triable question of material fact by arguing that she “did not recall the specific communication, (after spending months in the hospital), it was obvious that the line was to get into the store.” (See Opposition, p.7:1-3). Not only does the argument that Plaintiff “did not recall the specific communication” contradict Plaintiff’s deposition testimony, but it is not supported by a declaration from Plaintiff to explain the contradiction.

Plaintiff further tries to create a triable issue of material fact by relying on the deposition testimony of third-party witness Bree-Ahna Waller (Waller). However, Waller’s testimony is also insufficient to create a triable issue of material fact. Waller’s testimony that Plaintiff was directed by a Ralphs employee to go to the end of the line is directly contradicted by Plaintiff’s own deposition testimony. (See Ralphs’ Notice of Lodging Deposition Transcripts (RNOL), Ex.A, p.16:7-13, p.17:24-p.18:10, p.18:19-23, p.22:3-p.23:2, p.23:9-14; Ex.B, p.15:10-23, p.17:10; Stepanyan Decl., Ex.E, p.18:19-p.19:5). Further, Waller’s own testimony is equivocal on the issue of whether Plaintiff and Waller, herself, were directed by a Ralphs employee to line up outside the store. (See RNOL Ex.B, p.14:17-20, p.38:6-15, p.49:9-22, p.52:1-4, p.55:13-24). Since the evidence shows that Waller does not have personal knowledge of whether Plaintiff was directed by a Ralphs employee to stand in line, her testimony is inadmissible. See Evidence Code 702; (See RNOL, Ex.B, p.38: 20-22, p.52:1-4).

CONCLUSION

Ralphs has shown that Plaintiff cannot establish that Ralphs owed her a duty of care which is a necessary element of Plaintiff’s negligence cause of action. See CCP 437c(p)(2); Kesner, supra. In response, Plaintiff has failed to establish that a triable issue of material fact exists with regard to whether Ralphs owed Plaintiff a duty of care. CCP 437(p)(2). Therefore, Ralphs is entitled to summary judgment on Plaintiff’s only remaining cause of action for negligence against it. CCP 437c(c), (p)(2).