Judge Michael E. Whitaker, Case 19STCV06142 2023-05-23 Tentative Ruling

Judge: Michael E. Whitaker, Case: 19STCV06142, Date: 2023-05-23 Tentative Ruling

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.

Plaintiff Lovonya Finney (Plaintiff) sued Defendants Ralphs Grocery Company, Inc., The Kroger Co., Inc., and Gatekeeper Holdings, Inc. (collectively, Defendants) based on an incident in which Plaintiff was pushing a shopping cart in a Ralphs grocery store, and the cart was caught on a rug causing Plaintiff to trip and fall. Plaintiff brings a single cause of action for negligence against Defendants. (See Complaint filed February 22, 2019.)

Defendant Gatekeeper Holdings, Inc. (Gatekeeper) moves for summary judgment, or in the alternative summary adjudication, on Plaintiff’s complaint.[2] Plaintiff opposes the motion. Gatekeeper replies.

“[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.) “[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.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues. Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].) 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.” (Id. 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”].)

With respect to Gatekeeper’s evidentiary objections to Defendant Ralphs Grocery Company, Inc.’s responses to special interrogatories, the Court rules as follows:

With respect to Gatekeeper’s evidentiary objections to the deposition of Andrea Dixon, the Court rules as follows:

Plaintiff’s complaint asserts a single cause of action against Defendants for negligence. Gatekeeper moves for summary judgment on the complaint on the following grounds: (1) Gatekeeper did not owe a duty of care to Plaintiff to maintain the subject property where the incident occurred, nor the rug which was purportedly a factor in the shopping cart getting caught and causing her fall, and (2) Gatekeeper’s conduct was not a substantial factor in causing Plaintiff’s harm.

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.)

“To state a cause of action for negligence, a plaintiff must establish the defendant owed a legal duty of care. Generally speaking, all persons have a duty to take reasonable care in their activities to avoid causing injury, though particular policy considerations may weigh in favor of limiting that duty in certain circumstances.” (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 209 (hereafter Brown).) In general, “[e]veryone 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 of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714.) Section 1714 “establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others.” (Brown, supra, 11 Cal.5th at p. 214.)

Gatekeeper contends it does not own, possess, or control the subject premises where the incident took place, or the rug which was a factor in causing Plaintiff’s accident. As such, Gatekeep asserts it did not have a duty of care to maintain the subject premises and rug in a reasonably safe condition. In support of the contention, Gatekeeper advances the following responses by Plaintiff to Request for Admissions, set one (RFA) propounded by Gatekeeper:

At the time of the INCIDENT RALPHS was responsible for the repair of the PREMISES.

At the time of the INCIDENT RALPHS was responsible for inspection of the PREMISES.

Gatekeeper next advances the following responses by Plaintiff to Form Interrogatories, set two (FROG), verified by Plaintiff on August 8, 2022. Gatekeeper argues that Plaintiff’s lack of evidence of Gatekeeper’s ownership, control, maintenance or inspection obligations related to the subject premises and rug, indicates that Plaintiff cannot support her claims that Gatekeeper owed a duty of care to Plaintiff with relevant, admissible evidence.

(b) PLAINTIFF is ignorant of the name of all business/person(s) that maintain the PREMISES.

(c) Plaintiff is not able to respond to this subsection because PLAINTIFF is ignorant of the name of all business/person(s) that maintain the PREMISES.

(d) Plaintiff is not able to respond to this subsection because PLAINTIFF is ignorant of the name of all business/person(s) that maintain the PREMISES.

Responding Party is still investigating this matter and discovery has not been completed. Responding Party reserves her right to supplement and/or amend her response at a later date as further information and/or documentation becomes available up to and including the time of trial.

(b) PLAINTIFF is ignorant of the name of all business/person(s) that installed the rug which caused or contributed to the INCIDENT on the PREMISES;

(c) Plaintiff is not able to respond to this subsection because PLAINTIFF is ignorant of the name of all business/person(s) that installed the rug which caused or contributed to the INCIDENT on the PREMISES.

(d) Plaintiff is not able to respond to this subsection because PLAINTIFF is ignorant of the name of all business/person(s) that installed the rug which caused or contributed to the INCIDENT on the PREMISES.

(Declaration of Meegan Moloney, ¶ 5, Exhibit D.) Gatekeeper further argues that it can rely on these factually devoid answers to the FROG to shift the burden of proof to Plaintiff. (See Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.)

Accordingly, the Court finds Gatekeeper has met its initial burdens of production/persuasion to show that it did not have the requisite ownership of, or control over, the subject premises where the incident occurred, and in particular the subject rug which contributed to Plaintiff’s fall, to impose a duty of care. Thus, Gatekeeper has shifted the burden to Plaintiff to raise triable issues of material fact as to whether Gatekeeper exercised sufficient control over the subject premises and rug, creating a duty of due care on the part of Gatekeeper.

In opposition, Plaintiff advances evidence in support of the following contentions: (1) the shopping cart which Plaintiff was pushing when the subject incident occurred was equipped with a Gatekeeper locking mechanism; and (2) that the Gatekeeper locking mechanism caused Plaintiff’s trip and fall incident. (Plaintiff’s Opposition, pp. 6-7.)

“The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding. As our Supreme Court has explained it: The materiality of a disputed fact is measured by the pleadings, which set the boundaries of the issues to be resolved at summary judgment. Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493 [cleaned up]; see also Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258 [“The complaint limits the issues to be addressed at the motion for summary judgment. The rationale is clear: It is the allegations in the complaint to which the summary judgment motion must respond”].)

· Due to the negligent maintenance of the subject property, Plaintiff tripped on the folded rug on the ground of the subject property and sustained injuries . . . .

· Defendants so carelessly and negligently owned, controlled, inspected, and maintained the subject property as to leave the rug on the ground of the subject property subject to folding and dangerous.

Thus, Gatekeeper has addressed the factual issues in the motion that were framed by Plaintiff in her complaint: whether Plaintiff fell and tripped as a result of her shopping cart getting caught on a rug in the store and/or whether Gatekeeper had sufficient control over the subject premises and rug to impose a duty of care on Gatekeeper to reasonably maintain the premises and rug in a safe condition. Plaintiff did not allege in her complaint that she tripped and fell because the subject shopping cart’s locking mechanism unexpectedly activated. Consequently, Plaintiff cannot defeat the motion for summary judgment by attempting to raise a triable issue of material fact based on a factual assertion not raised in the pleadings.

Further, Plaintiff has failed to advance any additional admissible evidence in direct dispute of Gatekeeper’s Undisputed Material Facts (hereafter UMFs) 1 through 8. The Court finds Plaintiff has failed to meet her burden of production in raising triable issues of material fact as to whether Gatekeeper had sufficient control over the subject premises and rug to impose a duty of care upon it to maintain the premises and rug in a reasonably safe condition.

Notwithstanding, Plaintiff proffered the deposition testimony of Andrea Dixon who testified in part:

· Q. Do you know if the wheels of the shopping cart Ms. Finney was using did fail at the time of the incident?

(Declaration of Pius Joseph, ¶ 4, Exhibit B, 33:9-18.) In addition, Plaintiff advances the deposition testimony of Craig Greenberg who stated in part:

· So the way the system operates is, we put embedded cable in a floor that emits a radio frequency that instructs the wheel via the radio frequency, it's a -- to engage, to unlock, for the brake in the wheel to engage. And at the door where the individual exited from the checkout area and also at the main door, the main exit, there are no frequencies installed there. The wheels do not lock randomly, so...

· Well, it -- there are two types of installations that Gatekeeper puts in -- actually, there's more than two, but for purposes of this discussion, there's two. We put a locking frequency at a desired location in agreement with our retail partner. If that location is at an exit door, the wheel would require a frequency. We call it -- refer to it as a permission that it would receive from a point of sale, i.e., a check stand or self-check area, that tells the wheel that it has a pass or a digital ticket to go over that locking frequency without locking because the customer has been through an active point of sale location. In this instance, there were only locking frequencies installed at the entry door. So if somebody left through the entry door, a cart would lock and there was no devices installed at the exit doors, which is where this incident was recovered. So that’s kind of the variation.

Even considering Plaintiff’s evidence, such evidence does not address the core issues raised by Gatekeeper in the motion. But most important, Plaintiff’s own evidence does not raise a triable issue of material fact regarding the issue as framed by Plaintiff: “the cart was stopped due to the rug on the subject property folding underneath, causing Plaintiff to trip and fall.”

In short, the Court finds Plaintiff has failed to meet her burden of production in raising triable issues of material fact as to whether Gatekeeper had a duty of care to Plaintiff. [3]

In considering the competent evidence proffered by Plaintiff and Gatekeeper, and viewing such evidence most favorably to Plaintiff, the Court finds that there are no triable issues of material fact regarding whether Gatekeeper owned, possessed, or controlled the subject premises and rug. As such, the Court finds, as a matter of law, Gatekeeper did not owe a duty of care to Plaintiff to reasonably maintain the subject premises and rug in a reasonably safe condition.

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

[1] Defendant Gatekeeper Holdings, Inc. advances additional evidence through the declaration of Meegan Moloney in connection with the reply papers. The Court declines to consider the evidence as Plaintiff has not had an opportunity to respond. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [“Where a remedy as drastic as summary judgment is involved, due process requires a party be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail”]; see also Wall Street Network Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171.)

[2] “If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (California Rules of Court, rule 3.1350(b); see also California Rules of Court, rule 3.1350(d) [“The Separate Statement of Undisputed Material Facts in support of a motion must separately identify: (A) Each cause of action, claim for damages, issue of duty or affirmative defense that is the subject of the motion”].)

Here, in Gatekeeper’s Separate Statement of Undisputed Material Facts, it specifically denotes that it is moving for summary adjudication on the causes of action of negligence and premises liability, and further delineates between these two causes of action in the organization of its Undisputed Material Facts. (See Separate Statement of Undisputed Material Facts, pp. 2, 4, 7.) However, in its Notice of Motion, Gatekeeper fails to indicate it is moving for summary adjudication, in addition to summary judgment. (See Notice of Motion, pp. 1-2.) Further, and of even greater significance, Plaintiff has not alleged a premises liability cause of action against Gatekeeper in her complaint. (See Complaint filed February 22, 2019.) As such, Gatekeeper’s request for summary adjudication of a nonexistent claim is wholly superfluous. The Court thus declines to rule on Gatekeeper’s motion for summary adjudication and shall proceed solely on the merits of its motion for summary judgment.

[3] Gatekeeper has established that the duty of care element of Plaintiff’s negligence cause of action cannot be met and has defeated said claim on that ground. Accordingly, the Court does not need to reach Gatekeeper’s arguments in regard to the causation element of Plaintiff’s negligence claim.

DEPARTMENT	32
HEARING DATE	May 23, 2023
CASE NUMBER	19STCV06142
MOTION	Motion for Summary Judgment or, in the alternative, Summary Adjudication
MOVING PARTY	Defendant Gatekeeper Holdings, Inc.
OPPOSING PARTY	Plaintiff Lovonya Finney