Judge: Michael E. Whitaker, Case: 20STCV30657, Date: 2022-08-12 Tentative Ruling

Case Number: 20STCV30657    Hearing Date: August 12, 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

MOVING PAPERS:

1. Notice of Motion and Motion for Summary Judgment, or in the alternative, Motion for Summary Adjudication; Memorandum of Points and Authorities
2. Declaration of Thomas L. Walsmith in Support of Motion for Summary Judgment
3. Declaration of Mellania E. Safarian in Support of Motion for Summary Judgment
4. Declaration of Peter H. Crossin in Support of Motion for Summary Judgment
5. Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment
6. Compendium of Exhibits in Support of Motion for Summary Judgment

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment or in the alternative, Motion for Summary Adjudication; Memorandum of Points and Authorities
2. Declaration of Julia Sklar in Opposition to Motion for Summary Judgment
3. Declaration of Oleg Leytman in Opposition to Motion for Summary Judgment
4. Declaration of Alina Malesha in Opposition to Motion for Summary Judgment
5. Request for Judicial Notice

REPLY PAPERS:

1. Reply to Opposition to Motion for Summary Judgment or in the alternative, Motion for Summary Adjudication
2. Evidentiary Objections to Declaration of Oleg Leytman in Opposition to Motion for Summary Judgment
3. Evidentiary Objections to Declaration of Alina Malesha in Opposition to Motion for Summary Judgment

6. Evidentiary Objections to Request for Judicial Notice

BACKGROUND

Plaintiff Alina Malesha sued Defendant/Cross-Complainant Dr. J. Joseph Shelley and Ethel Shelley, A California Limited Partnership (“Defendant”) based on a trip-and-fall on property owned and controlled by Defendant.  Plaintiff alleges she sustained injuries when she tripped and fell over a cement wheel stop in Defendant’s parking lot due to poor lighting conditions. Defendant moves for summary judgment as to Plaintiff’s first cause of action for “General Negligence” and second cause of action for “Premises Liability” in the first amended complaint.  In the alternative, summary adjudication of four issues of duty with respect to the first and second causes of action.  Plaintiff opposes the motion. 

LEGAL STANDARDS – SUMMARY JUDGMENT / SUMMARY ADJUDICATION

“[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.; 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, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.”  (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“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”].) 

A party may move for summary adjudication as to one or more causes of action, affirmative defenses, claims for damages, or issues of duty if that party contends that there is no merit to the cause of action, defense, or claim for damages, or if the party contends that there is no duty owed.  (See Code Civ. Proc., § 437c, subd. (f)(1).)  “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.”  (Ibid.)  A cause of action has no merit if: (1) one or more elements of the cause of action cannot be separately established, even if that element is separately pleaded, or (2) a defendant establishes an affirmative defense to that cause of action.  (See Code Civ. Proc., § 437c, subd. (n); Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 583.)  Once the defendant has shown that a cause of action has no merit, the burden shifts to the plaintiff to show that a triable issue of material fact exists as to that cause of action.  (See Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 583.) 

EVIDENCE 

With respect to Defendant’s evidentiary objections to the Declaration of Alina Malesha, the Court rules as follows:

1. Overruled

2. Overruled

3. Overruled

4. Overruled

    

   With respect to Defendant’s evidentiary objection to the Declaration of Oleg Leytman, the Court rules as follows:

    

1. Sustained in part (“was repeatedly promised that the lighting would be carried out”)

    

   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, Plaintiff requests the Court to take judicial notice of a sunrise and sunset calendar.  (See Request for Judicial Notice, Exhibit A.)  To the extent Plaintiff seeks judicial notice of the authenticity of the website printout included as Exhibit A, the Court denies the request.  It would appear that Plaintiff ultimately seeks judicial notice of the time of the sunset on the date of the incident; however, the Court notes that Plaintiff’s request for judicial notice does not, in fact, request as much.  (See Request for Judicial Notice [seeking “judicial notice of the following printout personally taken by Julia Sklar…from the website”].)

            With respect to Defendant’s objection to Plaintiff’s request for judicial notice, the Court overrules the objection.

DISCUSSION

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.)

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].) 

1. NOTICE – ACTUAL OR CONSTRUCTIVE

    

   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].) 

    

   Here, Defendant moves for summary judgment on two grounds: (1) Plaintiff cannot establish that Defendant had actual or constructive notice of a dangerous condition of its property that caused or contributed to Plaintiff’s fall; and (2) the alleged dangerous condition was open and obvious. 

    

   Defendant advances the declaration of Thomas L. Walsmith (“Walsmith”), who is the property manager for Defendant’s property where the incident occurred.  Walsmith avers that he took over as property manager in December 2019, at which time he was given a property file for the subject property.  (Declaration of Thomas L. Walsmith, ¶ 7.)  Walsmith states that prior to his tenure, Vlada Jacoby (“Jacoby”) – who is now deceased - served as the property manager for the subject property.  (Declaration of Thomas L. Walsmith, ¶ 5.) 

    

   Walsmith states that his duties as property manager include, without limitation, responding to and addressing complaint from tenant or customers and handling issues with the property as they arise.  (Declaration of Thomas L. Walsmith, ¶ 6.)  Walsmith states that he has reviewed the property file and searched for any documents related to, conveyed, or described any trip and falls over any cement wheel stops in the parking lot prior to the date of the incident.  (Declaration of Thomas L. Walsmith, ¶ 8.)  According to Walsmith, nothing in his search of the property file documents related to, conveyed, or described any trip and falls over any cement wheel stops in the parking lot prior to the date of the incident, either at day or at night.  (Declaration of Thomas L. Walsmith, ¶ 9.)  Walsmith also states that nothing in his search of the property file documents related to, conveyed, or described any issues or complaints regarding the parking lot’s lighting conditions with respect to any trip and fall or other injury events. (Declaration of Thomas L. Walsmith, ¶ 11.)  Finally, Walsmith avers that, since his time as property manager, he has not been notified by any person or from any source of any trip and falls happening in the parking lot prior to August 18, 2018 or any prior trip and falls over any of the parking lot’s cement wheel stops, whether during the day of at night. (Declaration of Thomas L. Walsmith, ¶ 10.) 

    

   This evidence meets Defendant’s burden to show it did not have actual or constructive notice of a dangerous condition that caused or contributed to Plaintiff’s fall.  Defendant has shifted the burden to Plaintiff to raise triable issues of material fact as to whether Defendant knew or should have known of a dangerous condition before Plaintiff’s fall.

    

2. NO DUTY OF CARE – OPEN AND OBVIOUS CONDITION

    

   Defendant next moves for summary judgment, in part, on the ground that Plaintiff cannot establish that Defendant owed a duty of due care to Plaintiff.  Defendant asserts it did not owe a duty of due care to Plaintiff because the wheel stop was open and obvious. 

    

   Whether a duty should be imposed on a defendant depends on a variety of policy considerations, known as the Rowland factors.[1]  These factors include, inter alia, the foreseeability of harm to the plaintiff, the burden to the defendant and the consequences to the community of imposing the duty.  The court's task in determining whether a duty exists is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.  Foreseeability, when analyzed to determine the existence or scope of a duty, is a question of law to be decided by the court.

    

   (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 446 [cleaned up].)  “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 [cleaned up].)   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.)

    

               Defendant advances Undisputed Material Facts 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 with the attendant supporting evidence to contend that the purported dangerous condition – the wheel stop was open and obvious, and therefore, Defendant owed no duty of care to Plaintiff.    

    

   The attendant evidence meets Defendant’s burden to show that the alleged dangerous condition – the wheel stop – was open and obvious.  Defendant has shifted the burden to Plaintiff to raise triable issues of material fact as to whether dangerous condition was not open and obvious.

    

               In opposition to the motion, Plaintiff advances the declaration of Oleg Leytman (“Leytman”), who is Plaintiff’s husband and a lessee of a space in the building on the subject property.  Leytman avers that, per the terms of his lease agreement, parking areas were included in the common areas for which Defendant has exclusive control.  (Declaration of Oleg Leytman, ¶ 5.)  Leytman further avers that, on the date of the incident, there were no lighting polls or outdoor fixtures over the parking lot.  (Declaration of Oleg Leytman, ¶ 6.)  Leytman states that he had complained about the lighting conditions in the parking lot to the Jacoby for multiple years. (Declaration of Oleg Leytman, ¶ 7.) 

    

               Plaintiff also advances her own declaration.  Plaintiff states that on August 19, 2018, the date of the incident, she exited Leytman’s business at a few minutes after 8 p.m. toward the parking lot.  (Declaration of Alina Malesha, ¶ 4.)  According to Plaintiff, the sun had gone down by that time and it was dark.  (Ibid.)  Plaintiff states there were no lights in the parking lot at the time and that she could vaguely see the cars and the trees in the dark.  (Declaration of Alina Malesha, ¶ 5.)  Plaintiff states that she walked along the pedestrian path then tripped over the wheel stop and fell to the ground after having turned from the path toward her car.  (Declaration of Alina Malesha, ¶ 6.)  Plaintiff states that she could not see the wheel stop to avoid tripping over it because it was too dark, i.e., there was not enough light in the parking lot.  (Declaration of Alina Malesha, ¶ 5.)    

    

               Plaintiff also advances her own deposition testimony in which she affirmed that it was probably so dark in the parking lot that she could not see the wheel stop before she tripped over it.  (See Defendant’s Exhibit F, 167:17-20.)  And with respect to the photographs (Defendant’s Exhibit G), Plaintiff contends that they were not taken at the approximate time of her trip and fall in the parking lot.  Plaintiff’s testified at her deposition that “it was in the evening time.  It was already dark.  It must have been eight or before eight, probably,” and “well, it was dark.  It was quite dark.”  (See Defendant’s Exhibit E, 49:1-6.)

    

   Plaintiff’s evidence meets her burden to raise triable issues of material fact as to whether Defendant had actual or constructive notice of the purported dangerous condition that caused or contributed to Plaintiff’s fall, such that Defendant owed a duty of care to Plaintiff to protect her from it.  Specifically, Leytman states that he had complained of the poor lighting conditions in the parking lot to Jacoby prior to the subject incident.  Although Defendant attempts to frame the issue of notice as to whether Defendant had notice of “the parking lot’s lighting conditions as related to any trip and falls or any other injury events,” the Court finds Defendant’s view of the issue of notice to be too narrow.  Per Defendant’s summary of Plaintiff’s claims, Plaintiff alleges she tripped and fell because the parking lot was too dark.  Thus, as the purported dangerous condition is poor lighting in the parking lot, Leytman’s assertion that he lodged complaints to Jacoby prior to the incident specifically concerning the poor lighting conditions in the parking lot, a triable issue arises with respect to whether Defendant had actual or constructive notice of the poor lighting conditions in the parking lot. 

    

   Further, Plaintiff’s evidence meets her burden to raise triable issues of material fact regarding whether the purported dangerous condition – the wheel stop -was open and obvious.  Because of the time when the incident occurred, approximately, 8 p.m., Plaintiff has set forth evidence that the wheel stop, as an alleged dangerous condition, was not open and obvious because of the either nonexistent or poor lighting in the parking lot which was dark.  Stated differently, the wheel stop, which may be open and obvious in the daylight or with proper lighting, becomes allegedly dangerous in a dark parking lot without lighting or poor lighting.

    

   CONCLUSION AND ORDER

    

In considering the competent evidence proffered by Plaintiff and Defendant, and viewing said evidence most favorably toward Plaintiff, the Court finds that Plaintiff has established with sufficient, competent evidence that triable issues of material fact exist as to Defendant’s Undisputed Material Fact No. 8, 15 and 18.

Therefore, the Court denies Defendant’s motion for summary judgment and summary adjudication of four issues. Defendant  is ordered to give notice of the Court’s ruling, and to file a proof of service of the same.