Judge: Michael E. Whitaker, Case: 20STCV02614, Date: 2022-08-08 Tentative Ruling

Case Number: 20STCV02614    Hearing Date: August 8, 2022    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

 

DEPARTMENT

32

HEARING DATE

August 8, 2022

CASE NUMBER

20STCV02614

MOTION

Motion for Summary Judgment

MOVING PARTY

Defendant Hughes Markets, Inc. dba Ralphs

OPPOSING PARTY

Plaintiff Brendan Maloney

 

MOVING PAPERS:

 

  1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities
  2. Declaration of Laura Denton in Support of Motion for Summary Judgment
  3. Declaration of John Tyson, P.E., in Support of Motion for Summary Judgment
  4. Exhibits in Support of Motion for Summary Judgment
  5. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment

 

OPPOSITION PAPERS:

 

  1. Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities
  2. Declaration of Counsel in Support of Opposition to Motion for Summary Judgment
  3. Compendium of Exhibits
  4. Objections to Evidence Submitted in Support of Motion for Summary Judgment
  5. Response to Separate Statement of Undisputed Facts Submitted in Opposition to Motion for Summary Judgment
  6. Request for Judicial Notice in Support of Opposition to Motion for Summary Judgment

 

REPLY PAPERS:

 

  1. Reply and Notice of No Opposition Received to Motion for Summary Judgment
  2. Further Reply to Delinquent Opposition to Motion for Summary Judgment
  3. Separate Statement in Support of Reply to Opposition to Motion for Summary Judgment
  4. Objection to Declaration of Alan S. Turlington in Opposition to Motion for Summary Judgment

 

BACKGROUND

 

Plaintiff Brendan Maloney sued defendant Hughes Markets, Inc. dba Ralphs based on injuries Plaintiff alleges he sustained when he tripped and fell over a wheel stop in a parking lot owned and controlled by Defendant.  Defendant moves for summary judgment on Plaintiff’s sole cause of action for premises liability.  Plaintiff opposes the motion. 

 

PROCEDURAL OBJECTIONS

 

            Defendant’s Procedural Objections

 

            Defendant objects to Plaintiff’s opposition as untimely.  An opposition to a motion for summary judgment “shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.” (Code Civ. Proc., § 437c, subd. (b)(2).)  Plaintiff filed and served his opposition on July 29, 2022, which is 10 days before the hearing on the motion.  The Court therefore finds Plaintiff’s opposition to be untimely.

 

            Despite the procedural deficiency, Defendant has nevertheless filed a reply to Plaintiff’s opposition with full briefing on its merits.  Accordingly, the Court finds Defendant will not be prejudiced by the Court’s consideration of the merits of Plaintiff’s untimely, and exercises its discretion to do so.

 

Plaintiff’s  Procedural Objections

 

            Plaintiff objects to Defendant’s motion based on the alleged failure of Defendant’s separate statement and evidence in support of the motion to conform with California Rules of Court, rules 3.1350, subdivisions (g), and (h), 3.1110(c), and 3.1113(k). 

 

First, the Court overrules Plaintiff’s objection to Defendant’s separate statement under Rule 3.1350(h) as without merit.  Plaintiff objects to the separate statement for failure to conform to the issue-by-issue format required for a motion for summary adjudication.  Defendant’s motion does not seek summary adjudication of issues.

 

Second, although Defendant’s evidence in support of the motion exceeds 25 pages and does not comply with Rules 3.1350(g), 3.1110(c), and 3.1113(k), the Court finds the objections to be inconsequential.  In other words, despite the procedural deficiencies, Plaintiff has nevertheless filed an opposition to the motion with full briefing on the merits.  Accordingly, the Court finds Plaintiff will not be prejudiced by the Court’s consideration of Defendant’s motion on the merits, and exercises its discretion to do so.

 

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.)  “[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”].)

 

EVIDENCE

 

            With respect to Plaintiff’s objections to Defendant’s evidence in support of the motion, the Court rules as follows:

 

            All of Defendant’s Evidence

 

  1. Overruled

     

    Declaration of Laura Denton

     

  1. Overruled

     

    Declaration of John Tyson, P.E.

     

  1. Overruled

     

    With respect to Defendant’s objections to the Declaration of Alan S. Turlington, the Court rules as follows:

     

  1. Sustained

  2. Sustained

  3. Overruled

     

    REQUEST FOR JUDICIAL NOTICE

     

Under Evidence Code section 451, “[j]udicial notice shall be taken of the following: (a) The decisional, constitutional, and public statutory law of this state and of the United States and the provisions of any charter described in Section 3, 4, or 5 of Article XI of the California Constitution…(f) Facts and propositions of generalized knowledge that are so universally known that they cannot reasonably be the subject of dispute. ” (Evid. Code, § 451, subds. (a), (f).)

 

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: (a) The decisional, constitutional, and statutory law of any state of the United States and the resolutions and private acts of the Congress of the United States and of the Legislature of this state. (b) Regulations and legislative enactments issued by or under the authority of the United States or any public entity in the United States. (c) Official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States. (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…(g) Facts and propositions that are of such common knowledge within the territorial jurisdictions of the court that they cannot reasonably be the subject of dispute. (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. (a)-(d), (g), (h).)

The Court “shall take notice of any matter specified in Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” (Evid. Code, § 453.)

 

            Here the Court grants Plaintiff’s requests for judicial notice Nos. 1 and 2 per Evidence Code section 452(d)(1).  The Court denies Plaintiff’s requests for judicial notice Nos. 3-6.

           

DISCUSSION 

 

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.)  Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm.  (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) 

 

Liability in a premises liability action 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  (Cody F. v. Falleti (2001) 92 Cal.App.4th  1232, 1242, see Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676 [a landowner’s duty to take steps to prevent the wrongful acts of a third party is imposed only where such conduct can be reasonably anticipated].)  Accordingly, premises liability alleges a defendant property owner either (1) allowed a dangerous condition on its property or (2) failed to take reasonable steps to secure its property against criminal acts by third parties. (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406.)

 

Stated differently, because a property owner is not the insurer of the safety of its guests, the owner’s actual or constructive knowledge of the dangerous condition is key to establishing liability.  (Hall v. Aurora Loan Servs., LLC (2013) 215 Cal.App.4th 1134, 1139-1140; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 [“to impose liability for injuries suffered by an invitee due to a defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises”] [cleaned up].) 

 

The defendant market owner was not an insurer of the safety of his patrons, but owed them the duty to exercise reasonable care in keeping the premises safe for his invitees. To impose liability for injuries suffered by an invitee due to the defective condition of the premises, the owner or occupier must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it.  Whether, under all the circumstances, the defective condition had existed long enough so that a reasonable man exercising reasonable care would have discovered it, is ordinarily a question of fact to be decided by the jury. The fact alone that a dangerous condition existed at the time the accident occurred will not warrant an inference that the defendant was negligent. There must be some evidence, direct or circumstantial, to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it. 

 

(Girvetz v. Boys' Market (1949) 91 Cal.App.2d 827, 829 [cleaned up].)  And “[w]here the only evidence is that the foreign object has been on the floor of the market for a minute and a half, it must be held that it is insufficient to support an inference that the defendant proprietor failed to exercise the care required of him.”  (Id. at p. 831.) 

 

Defendant argues that it is not liable because the purportedly dangerous condition was open and obvious. 

 

“Foreseeability of harm is typically absent when a dangerous condition is open and obvious. ‘Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.’ In that situation, owners and possessors of land are entitled to assume others will “perceive the obvious” and take action to avoid the dangerous condition.”  (Id. at p. 447, citations omitted.)   Similarly, in Krongos, the Court of Appeal held, “Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.”  (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.)

 

In opposition, Plaintiff advances the declaration of counsel for Plaintiff, Alan S. Turlington (“Turlington”).  Turlington states that Plaintiff intends to retain expert witness Brad P. Avrit, PE (“Avrit”), who would review the incident location and wheel stop at issue to prepare a declaration in support of Plaintiff’s opposition.  (Declaration of Alan S. Turlington, ¶ 8.)  Turlington states that Avrit is an expert in civil engineering and the safe design and maintenance of commercial parking lots, including the safe placement of wheel stops.  (Declaration of Alan S. Turlington, ¶ 9, Exhibit B.)  Plaintiff requests a continuance per Code of Civil Procedure section 437c, subdivision (h), to permit Plaintiff time to serve and depose Avrit.  Accordingly, the Court continues the hearing on Defendant’s motion per Code of Civil Procedure section 437(h), to permit Plaintiff time to depose Avrit.

 

CONCLUSION AND ORDER

 

Therefore, the Court continues the hearing on Defendant’s motion for summary judgment per Code of Civil Procedure section 437c, subdivision (h) to allow Plaintiff retain Brad P. Avrit, PE and submit further evidence in opposition to the motion for summary judgment.

 

The Court continues the hearing on the motion for summary judgment to October 18, 2022, at 1:30 P.M. in accordance with the following: