Judge: Michael E. Whitaker, Case: 22SMCV01873, Date: 2023-12-14 Tentative Ruling

Case Number: 22SMCV01873    Hearing Date: December 14, 2023    Dept: 207

TENTATIVE RULING

MOVING PAPERS:

1. Notice of Motion & Motion for Summary Judgment and/or Adjudication;[1] Memorandum of Points & Authorities
2. Separate Statement of Undisputed Material Facts
3. Defendant’s Compendium of Exhibits
4. Defendant’s Errata Declaration of Armando DeArcus

OPPOSITION PAPERS:

1. Opposition to Motion for Summary Judgment; Memorandum of Points & Authorities
2. Declaration of Samantha Dewey-Gartner
3. Declaration of Rhonda Earick
4. Plaintiff’s Separate Statement of Disputed Material Facts

REPLY PAPERS:

1.      Reply

2.      Exhibit K – Declaration of Paola Orozco

3.      Exhibit L – Declaration of Jaime Ramirez

4.      Exhibit M – Warehouse Front Desk Responsibility & Etiquette

BACKGROUND

Plaintiff Samantha Dewey-Gartner (“Plaintiff”) filed suit for negligence, alleging she suffered a fracture to her left foot while returning back to her table from the restroom at the Warehouse Restaurant, when an employee of Defendant The Warehouse Restaurant, Inc. (“Defendant”) negligently stepped on Plaintiff’s foot. 

Defendant has moved for summary judgment and/or adjudication.  Plaintiff opposes the motion and 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”].)

PLAINTIFF’S OPPOSITION SEPARATE STATEMENT

            Code of Civil Procedure section 437c, subdivision (b)(3) requires:   “The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for granting the motion.”  Equally important, the California Rules of Court, rule 3.1350(h) provides:  “Supporting and opposing separate statements in a motion for summary judgment must follow this format . . . .”  (See Cal. Rules of Court, rule 3.1350(h) [formats].)       

            Here, Plaintiff submitted “Plaintiff’s Separate Statement of Undisputed Material Facts” which fails to comply with the Section 437c and Rule 3.1350.  Instead, Plaintiff merely introduces her own material facts, but does not respond to the material facts presented by Defendant as disputed or undisputed. 

            Defendant argues that the Court is within its discretion to grant Defendant’s motion on the basis that Plaintiff failed to comply with the separate statement requirements.

            Although Defendant is correct, the Court exercises its discretion to consider the substance of Plaintiff’s proffered evidence, notwithstanding Plaintiff’s failure to comply with the separate statement requirements.  (See, e.g., San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 315 [“in ruling on a motion for summary judgment, a trial court must consider all the evidence submitted, except the court may ignore evidence not disclosed in moving party's separate statement of undisputed facts”] (hereafter San Diego Watercrafts).) 

DISCUSSION

Plaintiff asserts a single cause of action for negligence, stemming from an injury she suffered when someone stepped on her foot while she was returning to her table from the bathroom while dining at the Warehouse Restaurant.  Plaintiff contends one of Defendant’s staff members, wearing a black uniform and carrying a tray of dishes, negligently stepped on her foot.  Defendant contends it was another patron who was wearing high heels who stepped on Plaintiff’s foot in the bathroom.

“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.”  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998, citation omitted.)  

Here, Defendant moves for summary judgment on the ground that Plaintiff cannot establish that there was “any female employee on duty, or working the floor at the date and time of her alleged injury.”  (Mot. at p. 3.)

1.      DEFENDANT’S EVIDENCE

·         There were no female servers/waitresses on duty, or in the restaurant at the time of the incident.  (DeArcus Decl., Exhibits A, B & D.) 

·         The dress code for female servers/witnesses (sic) is an (sic) Hawaiian shirt and light pants, either tan or white, and low button [non-heel] shoes.  (Exhibit C.) 

·         The incident occurred while Plaintiff was walking back to her table from the restroom.  (Exhibit G [Plaintiff’s response to Special Interrogatory No. 4.])

·         The person who stepped on Plaintiff’s foot was an “Unidentified female, approximately 30 years old, wearing all black clothing and carrying dirty dishes.”  (Exhibit G [Plaintiff’s response to Special Interrogatory No. 5.])

·         The restaurant gave Plaintiff the restaurant bill after she came back from the restroom.  (DeArcos Decl. ¶¶ 3, 6, 7, 9, 10, 11, 12.)

·         The customer check/billing statement shows the check was given to Plaintiff at 3:46 p.m. and Plaintiff paid the check at 3:58 p.m.[2]  (DeArcos Decl. ¶ 17; Exhibit B.)

·         The first female server clocked in to work at 4:20 p.m., wearing a Hawaiian shirt and light color pants, as required by the restaurant’s dress code for servers.  (Exhibit A; Nynatten Decl. ¶¶ 3, 7.)

·         At first, Plaintiff told the female server and the Warehouse manager on duty that another female customer wearing high heels stepped on her in the restaurant.  (Nynatten Decl. ¶ 3; Remirez Decl. ¶ 6.)

·         Approximately 30 minutes later, Plaintiff changed her story and said a female employee stepped on her foot and threatened to sue the restaurant.  (Remirez Decl. ¶ 12.)

·         Generally, it is the bussers who clean the tables and carry dirty dishes.  (Remirez Decl. ¶ 18.)

·         All of the bussers at the restaurant are male.  (Remirez Decl. ¶ 18.)

Defendant has met its burden of production and persuasion that it did not breach a duty of due care owed to Plaintiff or cause Plaintiff’s alleged injuries.  Consequently, Defendant has shifted the burden of production to Plaintiff to raise triable issues of material fact as to whether Defendant breached a duty of due care, causing injuries. 

2.      PLAINTIFF’S EVIDENCE

            In opposition, Plaintiff advances her own declaration and the declaration of her dining companion on the date of the incident, indicating as follows:

1.      On September 20, 2022, Plaintiff had lunch with her friend/colleague Rhonda Earick (“Earick”) at the Warehouse Restaurant in Marina del Rey. (Dewey-Gartner Decl. ¶ 4; Earick Decl. ¶ 3.)

2.      Plaintiff and Earick arrived at the restaurant at approximately 2:00 p.m. and stayed until almost 5:00 p.m.  (Dewey-Gartner Decl. ¶ 5; Earick Decl. ¶ 4; DeArcos Decl. ¶ 5.)

3.      At approximately 4:00 p.m., their waiter brought them their check.  He told them that his shift was over in minutes and asked them to pay the check now.  (Dewey-Gartner Decl. ¶ 6; Earick Decl. ¶ 5.)

4.      Plaintiff paid the check, totaling $224.64 with tip, with her MasterCard ending in 6457.  The electronic record of this charge from Plaintiff’s credit card issuer shows that this transaction occurred at 4:09 p.m.  (Dewey-Gartner Decl. ¶ 7 and Ex. A; Earick Decl. ¶ 6.)

5.      After Plaintiff paid their bill, Plaintiff and [Earick] remained seated at their table for at least another 30 minutes, nursing the remainder of a third martini which they shared and enjoying each other’s company.  (Dewey-Gartner Decl. ¶ 8; Earick Decl. ¶ 7.)

6.      Toward the end of their lunch, Rhonda went to use the restaurant’s restroom.  When she returned to their table, Plaintiff decided to also use the restaurant’s restroom before they left the restaurant.  (Dewey-Gartner Decl. ¶ 9; Earick Decl. ¶ 8.)

7.      While Plaintiff was walking back to their table from the restroom, a female employee of the restaurant wearing all black clothing and carrying dirty dishes, stepped forcefully on Plaintiff’s left foot.  (Dewey-Gartner Decl. ¶ 10; Earick Decl. ¶ 9.)

8.      After Plaintiff returned to her table, “another server, a female, arrived at their table.  Plaintiff told this new server what had just happened.”  After this new server brought Plaintiff a bag of ice, Plaintiff never saw her again.  (Dewey-Gartner, ¶ 11; Earick Decl. ¶ 10.)

9.      The manager was dismissive toward Plaintiff and refused her request for assistance to her car.  Ultimately two male customers at the restaurant carried Plaintiff to her car.  (Dewey-Gartner Decl. ¶ 12 and Ex. B; Earick Decl. ¶ 11.)

10.  Plaintiff never told anyone it was another customer that stepped on her foot or that the subject incident occurred within the restroom.  (Dewey-Gartner Decl. ¶ 13; Earick Decl. ¶ 12.)

11.  The required attire for Warehouse Restaurant Hosts/Hostesses is all black.  (Warehouse Policy Manual, page 2.)

12.  There were at least three female employees present at the Warehouse Restaurant at the time of Plaintiff’s injury, to wit, Tifany Izzo, Ana Karina Van Nyatten and Paola Orozco.  Most importantly, Paola Orozco is identified as a Hostess, an employee who was required to wear “Black shirt, black pants, black shoes, black socks”, who clocked in at 3:58 p.m.  (Warehouse Payroll Report for September 20, 2022, pages 1-2.)

13.  The Guest Accident Investigation Report form Warehouse Manager Ramirez handed to Plaintiff and which Plaintiff filled out indicates the “time of accident” as “5:00 p.m.” and indicates Plaintiff was “stepped on by an employee[.]”  (Dewey-Gartner Decl. ¶ 12 and Ex. B; Earick Decl. ¶ 11.)

Based upon that evidence, the Court finds that Plaintiff met her burden of production in establishing triable issues of material fact as to whether Defendant breached a duty of due care owed to Plaintiff, resulting in harm as alleged.  In particular, Plaintiff has demonstrated that  there is a genuine issues of material fact regarding whether the alleged incident occurred before or after Plaintiff paid her bill at 3:58 p.m., and whether Paola Orozco, a hostess, who clocked in at 3:58 p.m., wearing all black, could have been the one who stepped on Plaintiff’s foot.  In short, Plaintiff’s evidence in support of the opposition shows that an employee of Defendant as opposed to a third party, non-employee, stepped on her foot resulting in a “broken foot

3.      DEFENDANT’S REPLY EVIDENCE

In Reply, Defendant argues that Paola Orozco (“Orozco”) could not have been the one who stepped on Plaintiff’s foot because Plaintiff described the person who stepped on her foot as having “brownish hair,” being a “median build” and “approximately 5’6” tall, whereas Orozco has black hair and is 5’5” tall and weighs 230 pounds, which “any other person […] asked to describe Ms. Orozco would automatically state she is a huge woman[.]”  (Reply at p. 3.)  Moreover, Defendant argues that the hostess job description does not include cleaning tables or carrying dirty dishes.  (Reply at p. 4.)  In support, Defendant provides Declarations of Paola Orozco and of Jaime Ramirez, as well as The Warehouse Front Desk Responsibility & Etiquette and Host Training packet.

In general, a reply cannot contain new evidence because it violates the moving party’s right to due process.  (San Diego Watercrafts, supra, 102 Cal.App.4th at p. 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”]; see also Wall Street Network Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171.)  Thus, the Court is disinclined to consider Defendant’s additional evidence proffered in reply.  Defendant could have proffered the evidence and arguments about Orozco in its moving papers, instead of selectively omitting them to focus exclusively on female waitresses and bus boys, creating the misleading narrative that no restaurant employees wore all black and no female employees were on duty at the time of the incident.

But even if the Court were to consider this new evidence, it does not negate that a genuine issue of material fact still exists with regard to whether Orozco stepped on Plaintiff’s foot.  Whether the assailant was 5’5” or 5’6” and had brown hair versus black hair are sufficiently close descriptors to raise a genuine issue of material fact as to whether Orozco is the one who stepped on Plaintiff’s foot. 

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 are triable issues of material fact regarding whether Defendant breached a duty of due care owed to Plaintiff and whether Defendant’s breach of that duty of due care caused Plaintiff’s harm.

Therefore, the Court denies Defendant’s motion for summary judgment, or in the alternative, motion for summary adjudication.

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

DATED: December 14, 2023                                                 ___________________________

Michael E. Whitaker

                                                                                          Judge of the Superior Court