Judge: Michael E. Whitaker, Case: 18STCV07852, Date: 2023-05-25 Tentative Ruling

Case Number: 18STCV07852    Hearing Date: May 25, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion for Summary Judgment; Memorandum of Points and Authorities; Declaration of Judith Eideles; Declaration of Neil Fitzsimons; Declaration of Sharon Tran; Declaration of Alvina Garcia; Declaration of Terry Porvin
2. Request for Judicial Notice
3. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment
4. Index of Exhibits
5. Notice of Non-Opposition to Defendants’ Motion for Summary Judgment

OPPOSITION PAPERS:

            N/A

REPLY PAPERS:

            N/A

BACKGROUND

Plaintiff Michelle Garza (Plaintiff) sued Defendant Sam Chmelnicki individually and as Trustee of the Samuel Chmelnicki 2006 Living Trust dated April 6, 2006 (Sam Chmelnicki), based on injuries Plaintiff sustained in a trip and fall incident which occurred on a loading dock located at a 99 Cents Only Store, while Plaintiff was working as an employee of the 99 Cent Only Store. 

Defendant Judy Eideles as Successor Trustee of the Sam Chmelnicki 2006 Living Trust dated April 6, 2006 (Eidles) was substituted into the action as Doe 2 on November 14, 2020.  Sam Chmelnicki was dismissed from the case on June 28, 2021.    Defendants the Kroger Co. (Kroger) and Alpha Beta Company dba Ralphs (Alpha Beta) were substituted into the action as Does 3 and 4 on December 3, 2021.  

Plaintiff’s complaint asserts premises liability and negligence causes of action against Defendants Eidles, Kroger, and Alpha Beta (collectively, Defendants) as owners and operators of the subject premises where the loading dock at issue is located and where Plaintiff’s injuries occurred. 

Defendants move for summary judgment on Plaintiff’s complaint.  Plaintiff has not filed an opposition.

JUDICIAL NOTICE

Under Evidence Code section 452, “[j]udicial notice may be taken of the following matters to the extent that they are not embraced within Section 451: . . . (d) Record of (1) any court of this state or (2) any court of record of the United States or of any state of the United States . . . (h) Facts and propositions that are not reasonably subject to dispute and are capably of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (d), (h).)

            Here, pursuant to Evidence Code section 452, the Court grants Defendants’ unopposed request for judicial notice of the following: (1) Plaintiff’s complaint filed December 6, 2018; and (2) Michelle Erica Garza’s deposition transcript dated May 18, 2017.  In regard to the deposition transcript, the Court notes that it grants judicial notice of the occurrence of the deposition itself, but not the contents of the deposition transcript.

LEGAL STANDARD – MOTION FOR SUMMARY JUDGMENT

“[T]he 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[.] There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” ¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 (hereafter 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.” ¿(Ibid.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].) 

Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.”  (Aguilar, supra, 25 Cal.4th. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].) 

DISCUSSION

“The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury.  The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.”  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998, citation omitted.)  “Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.”  (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)  

“It is generally true that a person is liable for injuries to another only as a result of his or her own conduct.  Liability is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril.  Thus, liability is based on his or her own failure to act reasonably.”  (Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1242 [cleaned up]; Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1 [“premises liability alleges a defendant property owner allowed a dangerous condition on its property or failed to take reasonable steps to secure its property against criminal acts by third parties”].) 

1.     Duty of Care

The duties owed in connection with the condition of land are not invariably placed on the person holding title but, rather, are owed by the person in possession of the land because of the possessor's supervisory control over the activities conducted upon, and the condition of, the land.  This court recognized in Johnston v. De La Guerra Properties, Inc. (1946) 28 Cal.2d 394, 170 P.2d 5 that a defendant who lacks title to property still may be liable for an injury caused by a dangerous condition on that property if the defendant exercises control over the property. One of the defendants in Johnston operated a restaurant in a portion of a building leased from the owner of the property. A prospective customer of the restaurant fell while walking from her automobile onto an unlit portion of a walkway leading to the restaurant. The walkway was not situated within the premises leased by the defendant. This court observed:  A tenant ordinarily is not liable for injuries to his invitees occurring outside the leased premises on common passageways over which he has no control.  Responsibility in such cases rests on the owner, who has the right of control and the duty to maintain that part of the premises in a safe condition. It is clear, however, that if the tenant exercises control over a common passageway outside the leased premises, he may become liable to his business invitees if he fails to warn them of a dangerous condition existing thereon.

(Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1157–1158 [cleaned up] [reversing summary judgment for defendants because there were triable issues of material fact regarding defendants’ alleged control over the subject property.])  In Uccello, the Court of Appeal held in pertinent part:

[T]he public policy of this state generally has precluded a landlord's liability for injuries to his tenant or his tenant's invitees from a dangerous condition on the premises which comes into existence after the tenant has taken possession. This is true even though by the exercise of reasonable diligence the landlord might have discovered the condition. The rationale for this rule has been that property law regards a lease as equivalent to a sale of the land for the term of the lease. As stated by Prosser:  In the absence of agreement to the contrary, the lessor surrenders both possession and control of the land to the lessee, retaining only a reversionary interest; and he has no right even to enter without the permission of the lessee.  Consequently, it is the general rule that he is under no obligation to anyone to look after the premises or keep them in repair, and is not responsible, either to persons injured on the land or to those outside of it, for conditions which develop or are created by the tenant after possession has been transferred. Neither is he responsible, in general, for the activities which the tenant carries on upon the land after such transfer, even when they create a nuisance.

(Uccello v. Laudenslayer (1975) 44 Cal.App.3d 504, 510–511 [cleaned up] (hereafter Uccello).) 

Here, Defendants move for summary judgment on the ground that Plaintiff cannot establish that Defendants owed a duty of care to Plaintiff.  Specifically, Defendants argue they do not retain possession or control of the subject premises where the incident occurred, and thus an imposition of liability upon them for injuries that occur on the subject premises, such as Plaintiff’s, would be improper.  Defendants advance the following Undisputed Material Facts with supporting evidence (hereafter, UMFs) regarding their contention:

·       On December 7, 2016, Plaintiff was injured on the loading dock of the premises located at 321 N. Vincent Ave., Covina CA 91722.

·       On December 7, 2016, the loading dock of the premises was under the exclusive possession, custody and control of 99 Cents Only Stores.

(UMFs 2-3.)

            The Court concludes Defendants’ evidence is sufficient to meet their initial burdens of persuasion/production of evidence to demonstrate that Defendants did not exercise the requisite control over the subject premises to impose a duty of care on them.  Accordingly, Defendants have shifted the burden of production to Plaintiff to raise triable issues of material fact.

            Plaintiff has not opposed the Motion.  As such, Plaintiff has not met her burden of production to make a prima facie showing of the existence of a triable issue of material fact regarding whether Defendants exercised sufficient control over the subject premises to impose a duty of care upon them.  Absent that showing, Plaintiff cannot prevail.

2.     Existence of Dangerous Condition

Defendants have established that the duty element of Plaintiff’s negligence and premises liability causes of action cannot be met and has defeated said claims on that ground.  Accordingly, the Court does not need to reach Defendants’ arguments regarding whether a dangerous condition existed on the subject premises.

CONCLUSION AND ORDER

In considering the competent evidence proffered by Defendants, and viewing said evidence most favorable to Plaintiff, the Court finds that there are no triable issues of material fact, and determines, as a matter of law, that Defendants are not liable on the causes of action asserted in the complaint for negligence and premises liability.  In particular, Plaintiff has not established with sufficient, competent evidence that triable issues of material fact exist regarding whether Defendants either exercised the requisite control over the subject premises to impose a duty of due care upon them.

Therefore, the Court grants Defendants’ motion for summary judgment.  Defendants shall provide notice of the Court’s ruling and to file a proof of service of the same.