Judge: Michael E. Whitaker, Case: 20STCV16687, Date: 2023-01-03 Tentative Ruling

Case Number: 20STCV16687    Hearing Date: January 3, 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 and Motion for Summary Judgment; Memorandum of Points and Authorities
2. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment
3. Request for Judicial Notice in Support of Motion for Summary Judgment
4. Declaration of Maurice Pack in Support of Motion for Summary Judgment
5. Declaration of Donia Royster in Support of Motion for Summary Judgment
6. Appendix of Exhibits in Support of Motion for Summary Judgment

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment; Memorandum of Points and Authorities
2. Separate Statement in Opposition to Motion for Summary Judgment
3. Declaration of Kimberly Borst in Opposition to Motion for Summary Judgment
4. Declaration of John Habashy in Opposition to Motion for Summary Judgment
5. Appendix of Exhibits in Opposition to Motion for Summary Judgment

REPLY PAPERS:

1. Reply to Opposition to Motion for Summary Judgment
2. Reply to Separate Statement in Opposition to Motion for Summary Judgment
3. Declaration of Donia Royster in Reply to Opposition to Motion for Summary Judgment[1]

BACKGROUND

Plaintiff Kimberly Borst (Plaintiff) sued Defendants Far Sea Food, Inc. dba Denny’s #6906 and Tri Corner GP, LLC (Defendants) based injuries Plaintiff sustained from a battery that ensued allegedly in the parking lot of a Denny’s, owned and controlled by Defendants.  Defendants move for summary judgment on Plaintiff’s complaint, arguing that the battery did not occur in the subject Denny’s parking lot but rather a liquor store parking lot down the street which Defendants did not own or have any control over.  Plaintiff opposes the motion.  Defendants reply.

LEGAL STANDARDS – 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”].) 

REQUEST FOR JUDICIAL NOTICE

            The Court grants Defendants’ request for judicial notice of the following pursuant to Evidence Code section 452 and 453:

1. Plaintiff’s Complaint
2. Defendant Far Sea Food, Inc. dba Denny’s #6906’s Answer
3. Plaintiff’s Doe Amended filed July 20, 2021
4. Defendant Tri Corner GP, LLC’s Answer

DISCUSSION

Defendants move for summary judgment arguing that Plaintiff’s causes of action for premises liability and general negligence fail because Defendants did not own, possess, or control the area where Plaintiff was victim to a criminal battery, and thus did not owe an applicable duty of care to Plaintiff.

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.) The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.) But 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.)

      Defendants advance the following Undisputed Material Facts (UMF) to establish that the battery at issue occurred in the parking lot of a liquor store which Defendants did not own or control:

• Assailant Alberto Hernandez (Assailant) testified that he stole a bicycle from the Denny’s parking lot located at 8330 Topanga Blvd.  (UMF Nos. 12-15.)
• The next morning Assailant rode the bike to a liquor store where “someone ran up behind him and began punching him in the back of his head, yelling, telling him to get off the bike.”  (UMF No. 17.)
• Assailant testified that "the first time he ever came into contact with Plaintiff was in front of the liquor store.”  (UMF No. 18.)
• Assailant testified “he had never had an altercation with the Plaintiff in the Denny’s parking lot.”  (UMF N. 21.)
• Assailant testified that “the incident took place in the liquor store parking lot.”  (UMF No. 22.)
• Assailant testified that “this incident resulted in him serving time in prison occurred in front of the liquor store.”  (UMF No. 23.)
• Defendants have never owned, controlled, possessed, maintained, or managed the Liquor Store, or the parking lot located at 8536 Topanga Canyon Blvd., Canoga Park.  (UMF Nos. 24-31.)

This evidence meets Defendants’ burden to show the battery took place in the parking lot of a liquor store and Defendants did not own, operate, or control the subject liquor store or parking lot.  Defendants have shifted the burden to Plaintiff to raise a triable issues of material fact as to where the battery occurred and whether Defendants owned or controlled the premises where the battery occurred.

            In opposition, Plaintiff advances the following Responses to Defendants’ UMFs (RUMF) to establish that the subject battery occurred in the parking lot of the Denny’s at 8330 Topanga Blvd. rather than the liquor store at 8536 Topanga Canyon Blvd.:

• Plaintiff testified that Assailant stole her bicycle from the Denny’s restaurant located at 8330 Topanga Canyon Blvd, in Canoga Park, CA, Plaintiff got into an argument with Assailant, and Assailant hit Plaintiff with a hammer on her head.  Plaintiff testified that “[t]he theft, the argument, and the hammer attack all took place in the parking lot of the Denny’s restaurant.”  (RUMF No. 17; see also RUMF Nos. 18, 21 – 23.)

   

  Further, Plaintiff alleged in her Complaint that Defendant Far Sea Food, Inc. dba Denny’s # 6906 owned and operated the Denny’s restaurant and property located at 8330 Topanga Canyon Blvd., Canoga Park, CA 91304.  Plaintiff attests that because Defendants have failed to deny or controvert that they own and control the subject Denny’s, the trial court must deem it as true for the purposes of this Motion.  (Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1534.)

   

  In reply, Defendants argue Plaintiff’s deposition testimony is unreliable and self-serving and thus fails to create a triable issue of fact as to where the subject battery occurred and whether it took place in the subject Denny’s parking lot.  However, at the motion for summary judgment stage, it is not within the Court’s discretion to evaluate the credibility of Plaintiff’s testimony.   (Binder v. Aetna Life Ins. Co., supra, 75 Cal.App.4th at p. 839.)

   

  Accordingly, the Court finds that Plaintiff has met her burden of production in establishing the battery at issue took place in the subject Denny’s parking lot rather than the liquor store parking lot.  Additionally, Defendants have failed to rebut Plaintiff’s allegation that they own and control the subject Denny’s parking lot at 8330 Topanga Canyon Blvd., Canoga Park, CA 91304.  Accordingly, the Court must deem the allegation that Defendants own and have control over the subject Denny’s parking lot as true for purposes of this motion.  (Slovensky Slovensky v. Friedman, supra, 142 Cal.App.4th at p. 1534.)

   

  CONCLUSION AND ORDER

   

In considering the competent evidence proffered by Plaintiff and Defendants, and viewing said evidence most favorably toward Plaintiff, the Court finds that Plaintiff has established with sufficient, competent evidence that a triable issue of material fact exists as to whether the subject battery took place at the Denny’s parking lot located at 8330 Topanga Canyon Blvd., Canoga Park, CA 91304.  (UMF Nos. 17-18, 21-23.)  Further Defendants have failed to controvert Plaintiff’s allegation that they own and control said Denny’s parking lot. 

As such, Plaintiff’s has successfully created a triable issue of fact as to whether Defendants owed Plaintiff a duty of care based on their ownership and control of the Denny’s parking lot where the subject battery took place.  Therefore, the Court denies Defendants’ motion for summary judgment. 

The Clerk of the Court shall provide notice of the Court’s ruling.