Judge Michael E. Whitaker, Case 20STCV34748 2022-09-12 Tentative Ruling

Judge: Michael E. Whitaker, Case: 20STCV34748, Date: 2022-09-12 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 Kem Benny sued defendants Premier Parks, LLC (“Premier”), EPR Properties (“EPR”), and Santa Monica Amusements, LLC (“SMA”) (collectively, “Defendants”) based on a trip-and-fall on a curb on the Santa Monica pier. Plaintiff alleges she sustained injury when she fell off the curb/slope while browsing through display racks outside the Pier Gear Store (“Store”), which is owned and controlled by Defendants. (See Complaint, ¶ 14.) Defendants move for summary judgment on Plaintiff’s complaint for negligence and premises liability. Plaintiff opposes the motion.

“[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”].)

With respect to Plaintiff’s evidentiary objections to the Declaration of Ned Wolfe, P.E., the Court rules as follows:

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 the parties’ respective requests for judicial notice per Evidence Code section 452, subdivision (c).

Plaintiff asserts two causes of action against Defendants for negligence and premises liability. Defendants move for summary judgment on four grounds: (1) Defendants did not owe Plaintiff a duty of care because they neither owned or controlled the subject curb; (2) Defendants did not cause or contribute to Plaintiff’s fall; (3) Defendants did not have notice of the purported dangerous condition; and (4) the purported dangerous condition was open and obvious.

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.) “[R]ecovery in a negligence action depends as a threshold matter on whether the defendant had a duty to use due care . . . .” (Southern California Gas Leak Cases (2019) 7 Cal.5th 391, 397 [cleaned up].)

“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.)

Breach occurs when the defendant’s conduct falls below the standard of care established by law for the protection of others. (Rest.2d Torts, § 282; Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 396-397.) The usual standard is what an ordinarily prudent person would do under the circumstances. (Tucker v. Lombardo (1956) 47 Cal.2d 457, 463-464.) While not dispositive, custom and practice in the local business or social community may be considered in establishing a standard of care. (Bullis v. Security Pacific National Bank (1978) 21 Cal.3d 801, 809.) Further, compliance with all safety rules and codes does not establish due care as a matter of law, but may be considered in determining due care. (Amos v. Alpha Property Management (1999) 73 Cal.app.4th 895, 901.)

Causation is established by showing that a defendant’s breach of duty was a substantial factor in bringing about plaintiff’s injury, and there is no legal rule relieving defendant from liability. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) Defendant’s negligence is the actual cause, or cause in fact, of plaintiff’s injury if it is a substantial factor in bringing about the harm. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.) The doctrine of proximate cause relieves defendants from liability for injuries they, in fact, caused, based on considerations of policy and justice. (Ortega, supra, 26 Cal.4th at p. 1205.) But proximate cause only becomes relevant after it has first been determined that defendant’s conduct was the cause in fact of plaintiff’s injury. (See Rest.2d Torts, § 431, subd. (a).)

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].) 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, supra, 26 Cal.4th at p. 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.

“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.” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 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.)

Defendants advance the declaration of Dana Wyatt (“Wyatt”), who is the Director of Operations for SMA. Wyatt states that SMA owns and operates the Store for EPR, who is the real estate investment trust that leases the premises from the City of Santa Monica (“City”). (Compendium of Evidence, Declaration of Dana Wyatt, ¶¶ 4-7.) According to Wyatt, the area of the store leased to Defendants for the Store begins south of the subject curb and does not include the curb itself. (Compendium of Evidence, Declaration of Dana Wyatt, ¶ 8.) Wyatt states that City owns and controls the subject curb, and is responsible for its maintenance and repair. (Compendium of Evidence, Declaration of Dana Wyatt, ¶ 9.) Wyatt therefore states that Defendants neither own, control, nor have a right to maintain or repair the curb. (Compendium of Evidence, Declaration of Dana Wyatt, ¶ 10.) Wyatt avers, however, that Defendants have contractual right for the use of the area south of the subject curb to place displays. (Compendium of Evidence, Declaration of Dana Wyatt, ¶ 12.) Finally, Wyatt avers that there have been no prior, similar incidents involving the subject curb or display kiosks where Plaintiff fell. (Compendium of Evidence, Declaration of Dana Wyatt, ¶ 13.)

Defendants also advance a copy of the lease for the subject premises. According to the terms of the lease, City is responsible for the operation, maintenance, and repair of the “Common Area”, which includes, among other things, sidewalks, boardwalks, surface decking, and railing. (Compendium of Evidence, Declaration of Dana Wyatt, Exhibit A, p. 4.) The lease also states City shall have the right to establish, modify and enforce reasonable regulations with respect to the Common Area consistent with Tenant's rights under this Lease. (Ibid.)

Defendants also advance the declaration of Katherine Vasquez (“Vasquez”), who is the manager for the Store. Vasquez states that she was responsible for managing the displays both inside and outside the Store on the date of the incident. (Compendium of Evidence, Declaration of Katherine Vasquez, ¶ 2.) Vasquez states that the subject displays outside the Store are on wheels and were rolled out into the front area of the Store. (Compendium of Evidence, Declaration of Katherine Vasquez, ¶ 3.) Vasquez states that the Store’s employees conducted regular inspections on the date of the incident to ensure that the displays and the common area walkways and curbs were free of obstruction to facilitate pedestrian passage and accessibility. (Compendium of Evidence, Declaration of Katherine Vasquez, ¶ 4.) Vasquez avers that the design and layout of the displays were create with close consideration of pedestrian safety and, for that reason, the Store’s employees would arrange the displays in the same manner each day. (Compendium of Evidence, Declaration of Katherine Vasquez, ¶ 5.) Finally, Vasquez states that there have been no similar incidents in relation to the curb and display arrangement at the location of Plaintiff’s fall. (Compendium of Evidence, Declaration of Katherine Vasquez, ¶ 6.)

Defendants also advance the declaration of Ned Wolfe, P.E. (“Wolfe”), who is a licensed professional mechanical engineer. Wolfe has reviewed Plaintiff’s complaint; the deposition transcripts of the depositions of Plaintiff, Wyatt, and Vasquez; Plaintiff’s Responses to Special Interrogatories, set two; City’s Responses to Special Interrogatories; City of Santa Monica Ordinance 6.116.010(a)(6); and inspected the incident area. (Compendium of Evidence, Declaration of Ned Wolfe, ¶ 4.) With City of Santa Monica Ordinance 6.116.010(a)(6) as a backdrop, Wolfe states: “[t]here simply was no curb cut present anywhere within the vicinity of Plaintiff’s fall. A curb cut is a ‘ramp cut into a street curb to provide access (as for wheelchairs or strollers) between a sidewalk and the street.’ The area which Plaintiff allegedly fell was specifically a curb and there was no cut.” (Compendium of Evidence, Declaration of Ned Wolfe, ¶ 7(b)-(d).)[3] Further, Wolfe states that the subject curb was painted yellow at the time of the incident in accordance with the United States Department of Labor’s Occupational Safety and Health Administration standard number 1910.144(a)(3). (Compendium of Evidence, Declaration of Ned Wolfe, ¶¶ 8-9.) Wolfe states his personal inspection of the incident area revealed that there was no obstruction that would prevent someone using a reasonable degree of attention from being able to see the yellow-painted curb, and that the spacing between the displays was adequate to allow pedestrian travel. (Compendium of Evidence, Declaration of Ned Wolfe, ¶ 12.)

Defendants also advance a copy of the transcript of Plaintiff’s deposition taken August 17, 2021. At deposition, Plaintiff testified that immediately prior to her fall, Plaintiff looked down, saw her foot standing on the yellow curb, then stepped down off the curb and fell after the distance between the curb and pier turned out to be greater than she expected. (Compendium of Evidence, Exhibit B, pp. 19-20.) Plaintiff therefore testified that she ended up losing her balance and falling because she expected the curb to be shorter than it was. (Compendium of Evidence, Exhibit B, p. 62.)

This evidence meets Defendants’ burden to show it did not own, operate, or control the greater premises or the area where Plaintiff fell, that no act or omission by Defendants caused or contributed to Plaintiff’s fall, that Defendants did not have notice of the purported dangerous condition, and that the curb was open and obvious. Defendants have shifted the burden to Plaintiff to raise a triable issues of material fact as to whether Defendants owned, possessed, or controlled the incident area, had actual or constructive notice of the purported dangerous condition, caused or contributed to Plaintiff’s fall, or that Defendants’ owed Plaintiff a duty to warn of the purported dangerous condition.

In opposition, Plaintiff advances the declaration of Carl Sheriff, P.E. (“Sheriff”), who is a licensed professional safety engineer, licensed professional mechanical engineer, and licensed professional control systems engineer. Sheriff has reviewed the transcripts of the depositions of Plaintiff, Isabella Garcia, Vasquez, Mandy Garcia, Wyatt, City’s document production, relevant portions of the Santa Monica Municipal Code, photographs of the incident area, Plaintiff’s injuries, and the placement of the display racks in front of the Store, and Defendants’ motion and supporting papers. Sheriff also personally inspected the scene of the incident. (Opposing Compendium of Evidence, Declaration of Carl Sheriff, ¶¶ 14-15, 18.) Sheriff states that he measured the subject curb at nine inches in height. (Opposing Compendium of Evidence, Declaration of Carl Sheriff, ¶ 19.)

Plaintiff also advances the transcripts of the depositions of Wyatt and Vasquez, as well as her own. Plaintiff’s evidence fails to meet her burden to raise a triable issue of material fact as to whether Defendants owned, possessed, or controlled the incident area, caused or contributed to Plaintiff’s fall, had actual or notice of the purported dangerous condition, or that the curb was not open and obvious. Despite the lack of ownership or possessory interest, Plaintiff’s evidence does not indicate that Defendants were aware, or should have been aware, of the purported dangerous condition, nor does it indicate that Defendants’ conduct caused or contributed to Plaintiff’s fall, or that Defendants’ owed Plaintiff a duty to warn of the purported dangerous condition because it was not open and obvious.

Finally, although Sheriff opines that Defendants violated certain sections of the Santa Monica Municipal Code, the Court finds Sheriff’s opinions to be inadmissible because they are speculative, vague, or based on unsound reasoning. (See Nardizzi v. Harbor Chrysler Plymouth Sales, Inc. (2006) 136 Cal.App.4th 14090, 1415 [plaintiff cannot manufacture a triable issue of fact through an expert opinion devoid of any basis, explanation, or reasoning]; see also See Sargon, supra, 55 Cal.4th at p. 770 [expert's opinion may not be based on assumptions of fact without evidentiary support, or on speculative or conjectural factors].).)

Santa Monica Municipal Code section 6.116.010, subdivisions (a)(6), (b) and (c) provide:

“Except as otherwise authorized by this Code, no person on the Third Street Promenade, the Transit Mall, or the Pier shall display or distribute goods, written materials, merchandise, food, or any other items from any device or structure except on or from a portable table or cart utilized in accordance with the following provisions:

(a) The table or care shall be located: …(6) So that a curb cut is not blocked or obstructed;…

(b) The table or cart shall not be larger than four feet in width by eight feet in length by three feet in height.

(c) Except as provided in Section 6.116.080, no structures shall be attached to the table or cart. No other structure may be used to display the items. The display area, including the table or cart, shall be maintained in a neat and presentable manner. None of the items shall be displayed in an area other than upon the table or cart, including, but not limited to, in display racks on the sidewalks or in the hanging of the items from a building or fence or other structure. Any boxes or accessory items shall be stored entirely beneath the table or cart and shall not be stored or piled alongside of, behind, or in front of the table or cart. The items may be stacked on the table or cart, provided that each stack shall not exceed the height of twelve inches. Signs may be attached to the side of or on top of the table or cart. No signs may extend higher than the top of the table or cart and no signs may be affixed to City facilities. The site shall be kept clean and all rubbish shall be deposited in proper receptacles regularly during the day and prior to departing the site each day.”

Santa Monica Municipal Code section 6.116.080 provides: “No person shall place, install or erect objects on the Promenade, the Transit Mall, or the Pier which may block sight views, impede traffic or collapse, such as sandwich board signs (“A” frames), canopies, umbrellas, screens, large inflatables, tents, and similar objects unless such objects are placed, installed or erected pursuant to a street use permit, license, or other City-issued authorization which protects public safety.”

Without providing any basis, explanation, or reasoning for his opinions, such as the measurements of the displays or details of the construction and placement of the structures, Sheriff merely concludes that “Defendants’ display racks are specifically disallowed by [Section 6.116.010(b)] due to their design and measurement” and that Defendants violated Section 6.116.010(b) and (c) by placing display racks on the Santa Monica Pier. (Opposing Compendium of Evidence, Declaration of Carl Sheriff, ¶¶ 22-23.) Sheriff does not state that he measured the display racks, examined designs or schematics of the display racks, or that they are of a design or construction prohibited by those code provisions. Finally, Sheriff’s contention that because Subdivision (a)(6) does not state that only a curb cut is not blocked or obstructed, that subdivision also serves to prohibit any blocking of the entire curb is illogical. The Court would, in fact, find the opposite to be true. The Legislature’s explicit mention of a curb cut without mention of any other portion of a curb or the curb in its entirety would therefore indicate that Subdivision (a)(6) applies only to curb cuts. (See Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1391, fn. 13 [“Expressio unius est exclusio alterius means that ‘the expression of certain things in a statute necessarily involves exclusion of other things not expressed’’).] Sheriff’s conclusion that Defendants were grossly negligent and violated Sections 6.116.010(a)(6), (b), and (c) for placing display racks next to a curb that is unexpectedly 50% higher than a typical curb is therefore based on vague and unsound reasoning, and his opinions cannot manufacture a triable issue of fact.

In considering the competent evidence proffered by Plaintiff and Defendants, and viewing said evidence most favorably toward Plaintiff, the Court finds that Defendants have met their burden to show there is no triable issue of material fact and that they are entitled to judgment as a matter of law.

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

[1] Defendants advance additional evidence in connection with their reply papers. The Court declines to consider this 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”].)

[2] See Fn. 1 above.

[3] That code provision provides: “Except as otherwise authorized by this Code, no person on the Third Street Promenade, the Transit Mall, or the Pier shall display or distribute goods, written materials, merchandise, food, or any other items from any device or structure except on or from a portable table or cart utilized in accordance with the following provisions: (a) The table or care shall be located: … (6) So that a curb cut is not blocked or obstructed[.]” (S.M.M.C., § 6.116.010, subd. (a)(6).)

DEPARTMENT	32
HEARING DATE	September 12, 2022
CASE NUMBER	20STCV34748
MOTION	Motion for Summary Judgment
MOVING PARTIES	Defendants Premier Parks, LLC, EPR Properties, and Santa Monica Amusements, LLC
OPPOSING PARTY	Plaintiff Kem Benny