Judge Michael E. Whitaker, Case 21STCV20071 2023-04-13 Tentative Ruling

Judge: Michael E. Whitaker, Case: 21STCV20071, Date: 2023-04-13 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.

Defendant Costco Wholesale Corporation (Defendant) moves to seal Exhibits A and B which support Defendant’s opposition to Defendant Arctic Cooling Systems LLC (Arctic)’s motion for summary judgment/adjudication. Plaintiff Jianhua Hao (Plaintiff) and Arctic have not filed an opposition to the motion.

Unless confidentiality is required by law, court records are presumed to be open to the public, pursuant to a potent “open court” policy undergirded by the First Amendment and favoring the public nature of court proceedings.¿ (Cal. Rules of Court, rule 2.550, subd. (c); see¿NBC Subsidiary (KNBC-TV), Inc. v. Superior Court¿(1999)¿20 Cal.4th 1178, 1199-10.)¿ Consequently, pleadings, motions, discovery documents, and other papers may not be filed under seal merely by stipulation of the parties; filing under seal requires a court order.¿ (Cal. Rules of Court, rule 2.551(a); see¿H.B. Fuller Co. v. Doe¿(2007) 151 Cal.App.4th 879, 888.)¿

A sealing order must be sought by means of a motion (or application) and accompanied by a memorandum of points and authorities, as well as evidence and testimony containing facts sufficient to justify the mandatory findings required to support a sealing order.¿ (Cal. Rules of Court, rules 2.550(d) & 2.551(b).)¿ The proponent of the sealing order must also conditionally lodge the¿unredacted¿matter to be sealed with the court.¿ (Cal. Rules of Court, rule 2.551(b)(4).)¿

To grant a motion to seal, a trial court must expressly find that: (1) an overriding interest exists that overcomes the right of public access to the record; (2) the overriding interest supports sealing the records; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no¿less restrictive means exist to achieve the overriding interest.¿ (Cal. Rules of Court, rule 2.550 (d).) “If the trial court fails to make the required findings, the order is deficient and cannot support sealing.” (Overstock.com, Inc. v. Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 487; see also In re Marriage of Tamir (2021) 72 Cal.App.5th 1068, 1087 [“express findings must be made to seal records”].)

Here, Defendant seeks to seal two contracts between Defendant and Arctic: (1) the May 1, 2020 Refrigeration Maintenance Services Agreement; and (2) the August 31, 2020 Refrigeration Maintenance Services Agreement.

Plaintiff sustained injuries in a slip and fall accident which occurred in Defendant’s retail warehouse. Plaintiff alleges that the slip and fall incident was caused by liquid leaking from a refrigerator in the retail warehouse. Arctic, a company contracted by Defendant to perform refrigerator maintenance, argues it is not liable for Plaintiff’s injuries based on the agreement entered into between Defendant and Arctic on August 31, 2020, which establishes that Arctic’s quarterly maintenance obligations did not arise until after the accident occurred. Arctic argues further there is no evidence that Defendant made a specific work request regarding the refrigerator at issue. In opposition Defendant contends, based on the contracts it requests to file under seal, Arctic and Defendant entered into an identical contract on May 1, 2020, which established Arctic’s quarterly maintenance obligation before the incident occurred. Defendant concludes that this creates a triable issue of material fact as to whether Arctic had an obligation to perform its quarterly maintenance obligation and failed to properly do so.

Defendant advances the declaration of counsel for Defendant, Nathaniel Clark (Counsel). Counsel claims an overriding interest exists to file the subject contracts under seal to “preserve the confidentiality of its internal business practices, which includes the negotiation of service contracts with vendors and service providers.” (Declaration of Nathaniel Clark, ¶ 9.)

Counsel also avers that the subject contracts have been subject to a protective order voluntarily entered into between the parties and approved by the Court. (Declaration of Nathaniel Clark, ¶¶ 3-8, Exhibit 1.) Counsel explains the contracts sought to be filed under seal are subject to the protective order based on Defendant’s right under the protective order to designate documents as “confidential”. (Declaration of Nathaniel Clark, ¶¶ 7-8.) Defendant concludes that its internal business practices and confidential information will be prejudiced if the subject records are not sealed. Defendant further avers that the proposed sealing is narrowly tailored and there are no less restrictive means to achieve Defendant’s overriding interest of protecting its internal business practices and commercially and competitively sensitive interest because of the nature of the contracts to be sealed.

The Court finds that Defendant has not proffered sufficient, competent evidence demonstrating that the subject contracts between Defendant and Arctic should be sealed from the public. (See Cal. Rules of Court, rule 2.550(c).) In particular, the Court questions whether Counsel has personal knowledge or the requisite foundation to aver that Defendant has an interest in preserving “the confidentiality of its internal business practices, which includes the negotiation of service contracts with vendors and service providers.” Further, Defendant’s generalized contention that it has an interest in protecting against disclosure of its internal business practices and commercially and competitively sensitive information is not sufficient to establish an overriding interest or substantial probability that said interest will be prejudiced if the subject evidence is filed under seal. (See H.B. Fuller Co. v. Doe, supra, 151 Cal.App.4th at pp. 891-892 [finding that sealing documents is not justified when there is no concrete evidence of any overriding interest, but only contentions and conclusory averments that documents are confidential or private in some sense].)

And although the records sought to be filed under seal are subject to a protective order pursuant to stipulations by the parties, the Court may not permit the records to be filed under seal based solely on such stipulations or agreements. (Cal. Rules of Court, rule 2.551(c).) The Court still must find an “overriding” interest that justifies the sealing, as well as a substantial probability that a party will be prejudiced absent the sealing. (Cal. Rules of Court, rule 2.550(d)(1)-(3).) Here, Defendant fails to establish either of the foregoing. Defendant does not identify specific information that is entitled to protection from public disclosure, and further does not give specific reasons why said information should be withheld, apart from what is stated in Counsel’s albeit faulty declaration.

In short, this is a simple failure of proof on the part of the Defendant. From the record before the Court, the Court is unable to make the requisite findings under the California Rules of Court. Therefore, the Court denies Defendant’s motion to seal (1) the May 1, 2020 Refrigeration Maintenance Services Agreement; and (2) the August 31, 2020 Refrigeration Maintenance Services Agreement.

Defendant shall provide notice of the Court’s ruling and file a proof of service of such.

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. 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 Jianhua Hao (Plaintiff) sued Defendants Costco Wholesale Corp. and Arctic Cooling Systems, LLC (collectively, Defendants) for premises liability and general negligence based on injuries Plaintiff alleges he sustained from a slip and fall incident at a Costco Warehouse.

Defendant Arctic Cooling Systems, LLC (Arctic) moves for summary judgment, or in the alternative summary adjudication, on Plaintiff’s complaint. Plaintiff opposes the motion. Further, Defendant Costco Wholesale Corp. (Costco) separately opposes the motion. Arctic replies.

With respect to Plaintiff’s evidentiary objections to the Declaration of Nick Tully advanced in support of the motion for summary judgment, or in the alternative summary adjudication, the Court finds Plaintiff’s objections do not comply with the requirements set forth in California Rules of Court, rule 3.1354. Rules 3.1354 provides in pertinent part:

All written objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion. Objections to specific evidence must be referenced by the objection number in the right column of a separate statement in opposition or reply to a motion, but the objections must not be restated or reargued in the separate statement. Each written objection must be numbered consecutively and must:

(1) Identify the name of the document in which the specific material objected to is located;

(2) State the exhibit, title, page, and line number of the material objected to;

Written objections to evidence must follow one of the following two formats: [¶] . . . [¶]

A party submitting written objections to evidence must submit with the objections a proposed order. The proposed order must include places for the court to indicate whether it has sustained or overruled each objection. It must also include a place for the signature of the judge. The court may require that the proposed order be provided in electronic form. The proposed order must be in one of the following two formats: [¶] . . . [¶]

(See Cal. Rules of Court, rule 3.1354(b)-(c), emphasis added.) Here, Plaintiff did not number each objection consecutively, nor submit a proposed order following one of the prescribed formats. Despite said incongruencies, the Court exercises its discretion to rule on Plaintiff’s evidentiary objections as follows:

With respect to Costco’s evidentiary objections to Arctic’s evidence advanced in support of motion for summary judgment, or in the alternative summary adjudication, the Court rules as follows:

With respect to Arctic’s evidentiary objections to the evidence advanced in support of Plaintiff’s opposition to motion for summary judgment, the Court rules as follows:

“[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”].)

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.)

Arctic contends that both Plaintiff’s negligence and premises liability causes of action fail as to Arctic based on a lack of an applicable duty Arctic owed to Plaintiff vis-à-vis Plaintiff’s underlying injuries. Arctic specifically argues the following: (1) Arctic did not own or control the subject premises where Plaintiff was injured; (2) Arctic only performed maintenance services for Costco subject to express request; (3) there is no evidence of an express request from Costco for maintenance repairs of the leaking refrigerator in question; and (4) thus Plaintiff cannot establish that Arctic owed a duty in relation to maintenance services it was never required, or requested to perform.

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.)

“A defendant or cross-defendant has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. Once the defendant or cross-defendant has met that burden, the burden shifts to the plaintiff or cross-complainant to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2); accord Doe v. Good Samaritan Hosp. (2018) 23 Cal.App.5th 653, 661 [“It is not until the defendant meets this burden that the burden of production shifts to the plaintiff to show that a triable issue of one or more material facts exists as to the defense”].)

Furthermore, “[t]he requirement of a separate statement from the moving party and a responding statement from the party opposing summary judgment serves two functions: to give the parties notice of the material facts at issue in the motion and to permit the trial court to focus on whether those facts are truly undisputed.” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210.) Stated in a different way, “[t]he purpose of a summary judgment proceeding is to permit a party to show that material factual claims arising from the pleadings need not be tried because they are not in dispute. The purpose is carried out in section 437c, subdivision (b)(1) by requiring the moving party to include in the moving papers a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed together with a reference to the supporting evidence. The complaint measures the materiality of the facts tendered in a defendant's challenge to the plaintiff's cause of action, hence the moving party's separate statement must address the material facts set forth in the complaint.” (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 168 [cleaned up].) And “[w]here the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 940.)

Arctic contends that there are 24 Undisputed Material Facts which support its arguments that Plaintiff cannot prevail on either the negligence or premises liability causes of action. To support its arguments, Arctic advances in pertinent part the Declaration of Nick Tully. However, based upon the Court’s rulings on Plaintiff and Costco’s evidentiary objections, Nick Tully’s declaration has (in part) no evidentiary value. (See the Court’s rulings on Plaintiff and Costco’s Evidentiary Objections above.) As such, Arctic’s Undisputed Material Fact Nos. 6 and 12 are without evidentiary support. In the absence of such material facts, Arctic will not be able to persuade the Court that there are no triable issues of material fact concerning Plaintiff’s claims for general negligence and premises liability.

In short, because Artic fails to support all of the facts it claims are material and undisputed with sufficient, competent evidence, the Court finds that Arctic has not met its initial burdens of production and persuasion. Consequently, the Court determines that the burden of production does not shift to Plaintiff or Costco to produce evidence that raises triable issues of material fact.

Having found that Arctic has not met its initial burdens of production and persuasion, the Court denies Arctic’s motion for summary judgment. Arctic is not entitled to judgment as a matter of law.

[1] Based on the Court’s April 13, 2023 ruling, denying Costco’s motion to file Exhibits A and B in support of its opposition to Plaintiff’s motion for summary judgment/adjudication under seal, the Court shall not consider said evidence in its analysis of the instant motion.

DEPARTMENT	32
HEARING DATE	April 13, 2023
CASE NUMBER	21STCV20071
MOTION	Motion to File Exhibits Under Seal
MOVING PARTIES	Defendant Costco Wholesale Corporation
OPPOSING PARTIES	None

DEPARTMENT	32
HEARING DATE	April 13, 2023
CASE NUMBER	21STCV20071
MOTION	Motion for Summary Judgment, or in the Alternative Summary Adjudication
MOVING PARTY	Defendant Artic Cooling Systems, LLC
OPPOSING PARTIES	Plaintiff Jianhua Hao and Defendant Costco Wholesale Corp.