Judge: Michael E. Whitaker, Case: 21STCV26331, Date: 2023-05-03 Tentative Ruling

Case Number: 21STCV26331    Hearing Date: May 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 & Motion for Summary Judgment; Memorandum of Points & Authorities
2. Separate Statement of Undisputed Material Facts
3. Notice of Intent to Lodge Video
4. Notice of Lodgment of Video
5. Compendium of Evidence

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment; Memorandum of Points & Authorities
2. Plaintiff Blue’s Exhibits
3. Separate Statement of Disputed Facts

REPLY PAPERS:

1.      Reply

2.      Evidentiary Objections to Plaintiff’s Evidence in Opposition

BACKGROUND

Plaintiff Dionza Blue (“Plaintiff”) alleges he sustained injuries when a table that he was leaning or sitting on collapsed, causing him to fall.  The subject table was on the premises owned and controlled by Defendant The Veggie Grill Inc. (“Defendant”).

Defendant moves for summary judgment.  Plaintiff opposes the motion. Defendant replies. 

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”].)

EVIDENITARY OBJECTIONS

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

1.      Sustained.

2.      Sustained.

3.      Sustained.

DISCUSSION

In the first amended complaint (“FAC”), Plaintiff asserts causes of action for negligence and premises liability.  “The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury.  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, citation omitted.)  “Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.”  (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)  

“It is generally true that a person is liable for injuries to another only as a result of his or her own conduct.  Liability 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.  Thus, liability is based on his or her own failure to act reasonably.”  (Cody F. v. Falletti (2001) 92 Cal.App.4th 1232, 1242 [cleaned up]; Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406, fn. 1 [“premises liability alleges a defendant property owner allowed a dangerous condition on its property or failed to take reasonable steps to secure its property against criminal acts by third parties”].) 

Stated differently, “because the owner is not the insurer of the visitor's personal safety, the owner's actual or constructive knowledge of the dangerous condition is a key to establishing its liability. Although the owner's lack of knowledge is not a defense, 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 . . . .”  (Hall v. Aurora Loan Services, LLC (2013) 215 Cal.App.4th 1134, 1139-1140 [cleaned up]; 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 the ground that Plaintiff cannot establish that (1) a dangerous condition existed on the premises, or (2) Defendant had actual or constructive notice of a dangerous condition of its property that caused or contributed to Plaintiff’s injuries.  As framed by the pleadings, Plaintiff alleges that his fall was caused by Defendant’s “improper maintenance of the table as well as…failure to warn about the unstable condition of the table” and that Defendant “fail[ed] to maintain and repair defective products.” (FAC, ¶¶ 13, 18.)

1.      DEFENDANT’S EVIDENCE - NOTICE

            Defendant advances the declaration of Frances Ong (“Ong”) who was at the time of the subject incident the general manager of Defendant’s premises.  (Declaration of Frances Ong, ¶ 2.)  In relevant part, Ong states:

·         “The tables in the restaurant were handled on a daily basis and anything out of the ordinary with the table would be brought to my attention. At the time of the incident, I did not have any information to lead me to believe that any of the tables could cause injury to patrons. At the time of the incident, I did not have any information to lead me to believe that any of the tables were defective or in need of repair.”

·         “The Pasadena restaurant had two types of tables: the outdoor tables were metal and the indoor tables were wood. The outdoor tables and chairs were moved to the patio when the restaurant opened in the morning, and they were moved indoor when the restaurant closed in the evening. The indoor tables were not moved to another location during opening; however, they were moved out of the way daily to allow staff members to sweep the area under the table. All tables were also cleaned at night and wiped down several times during the day on an as-needed basis. As these tables were handled and inspected throughout the day, any issues would have been discovered and, as the general manager of the restaurant, would have been brought to my attention.”

·         “During the 8 years that I worked full time at the Pasadena restaurant, I recall that there were occasions when the screws of the metal outdoor table would be loose. In those situations, I, or another staff member, would tighten the screws. However, there was not a similar issue with the wooden indoor tables. I have not needed to tighten screws for the wooden indoor tables, and I am not aware of any other staff members tightening screws for the wooden indoor tables.”

·         “From the time the restaurant re-opened after Covid to the time of the Plaintiff’s fall in September 2020, there were no issues with either the outdoor or indoor tables; there were no loose screws, no broken parts, and there was nothing out of the ordinary with the tables that would lead me to believe that it could collapse or break or fall down. The only issue involving the indoor tables after Covid was that they were sanitized so frequently that the surface became sticky. I believe the indoor tabletops were refinished for that reason.”

·         “Other than the incident involving Plaintiff, the tables in the Pasadena restaurant (indoor and outdoor) have never collapsed while being used. Prior to the incident involving Plaintiff, no patron has ever been injured from using an indoor or outdoor table.”

(Declaration of Frances Ong, ¶¶ 4-6, 10-11.) 

            Defendant also proffers the declaration of Steven Brown, who was Defendant’s Director of Human Resources from 2017-2020.  (Declaration of Steven Brown, ¶ 2.)  Brown asserts in pertinent part as follows:

·         “As the Vice President of Human Resources, all store incident reports are routed to my attention. The Veggie Grill restaurants maintain records of all reported incidents and injuries occurring at the respective restaurants.”

·         “From the time that I worked in the Human Resources Department at The Veggie Grill in 2016 to the present, there has not been another similar incident in any of the stores throughout the United States where a table collapsed while a patron was using the table. There are no reports of any injury or other incident to patrons involving use of the tables at The Veggie Grill from 2017 to the present, except for the incident involving the Plaintiff in this case.”

(Declaration of Steven Brown, ¶¶ 7, 9.)   Further, Defendant advances Plaintiff’s responses to  Special Interrogatories 11-15, in which Plaintiff concedes in relevant part:  “It is unknown to Plaintiff the extent of the knowledge of the defendants” of any unsafe condition which caused Plaintiff’s harm.  (Compendium of Evidence, Exhibit E, Special Interrogatories Nos. 11-15, pp. 5-6.)  [1]

In addition, Defendant puts forward surveillance video of the incident that shows tables against the windows of the subject premises. In the video, Plaintiff appears to sit/lean against one of these tables. About fifteen seconds after Plaintiff either leans or sits, the table appears to collapse from under Plaintiff.  (Compendium of Evidence, Exhibit G; Notice of Lodgment of Video.) 

Defendant’s evidence shows that Defendant did not have actual or constructive notice of any dangerous condition associated with the subject table.  Consequently, Defendant has shifted the burden of production to Plaintiff to raise triable issues of material fact as to whether Defendant had notice, actual or constructive, of a dangerous condition regarding the subject sidewalk that Plaintiff alleges collapsed under him, causing injuries. 

2.      PLAINTIFF’S EVIDENCE – NOTICE

            In opposition, Plaintiff advances his own declaration in which he states in full (subject to the Court’s rulings on Defendant’s evidentiary objections) as follows:

·         “On September 10, 2020, I fell at Defendant Veggie premises, during a Thursday afternoon, while placing a food order from Veggie Grill.”

·         “While in Veggie Grill, there were no seats so I slightly leaned against the metal table.”

·         “However, after the second adjusting lean the table collapsed and fell apart causing me to fall back and causing injury to my body.”

·         “I was unaware of the risk of leaning on a metal table which is usually sturdy.”

·         “I leaned on the metal table twice due to the time that I was waiting for my food.”

·         “Unfortunately, Defendant Veggie lined tables with no chairs and no walls to lean on while waiting for food.”

·         “I sustained the following injuries: head trauma; severe back and neck pain; left knee; left hip and left arm, bodily injuries due to the fall.”

(Declaration of Dionza Blue, ¶¶ 1-6, 9.)   Plaintiff also proffers his deposition testimony in which he stated in relevant part:

·         “They had -- when I walked back into the restaurant there was a crowd a couple of people standing around. I don't remember, if I went to a specific spot because of COVID or what was going on. I just know we weren't in the normal line. Everyone was in their own section when I walked in. I seen an open space. I walked over to the open space. It was -- there happened to be tables by the door. They were right by the door.  It wasn't far when I walked in. I saw the table there. It was an open, clear space. I leaned up against one of  the tables, and the table broke that I leaned up against.”

·         Plaintiff does not recall if he sat or leaned against the subject table while talking on his cell phone and there were no chairs adjacent to the subject table. 

(Plaintiff Blue’s Exhibits, Exhibit 2, 30:6-31:22.)  Further, Plaintiff advances two photos depicting him walking into Defendant’s premises and the subject table collapsing from under Plaintiff.  (Plaintiff Blue’s Exhibits, Exhibit 3.) 

CONCLUSION AND ORDER

In considering the competent evidence proffered by Plaintiff and Defendant, and viewing said evidence most favorably to Plaintiff, the Court finds that there are no triable issues of material fact regarding, including Defendant’s Undisputed Material Facts Nos. 13, 27-31.  Defendant has met its burdens of production and persuasion that there are no triable issues of material fact as to whether it had actual or constructive notice of the allegedly dangerous condition associated with the subject table which may have caused or contributed to Plaintiff’s harm.  On the other hand, Plaintiff fails to meet his burden of production to establish that triable issues of material fact exist, especially on the issue of notice, actual or constructive.  Nothing put forward by Plaintiff raises even an inference that Defendant either knew or  should have known that the subject table was a dangerous condition from which Defendant either had a duty to remedy, or warn of, the purported defect. 

Therefore, the Court grants Defendant’s motion for summary judgment.  Defendant shall provide notice of the Court’s ruling and file a proof of service of such.