Judge Michelle C. Kim, Case 19STCV08985 2023-03-21 Tentative Ruling

Plaintiff Jose Caudillo (“Plaintiff”) filed this action against Defendant Costco Wholesale Corporation (“Defendant”) for injuries Plaintiff sustained after falling at Defendant’s property located at 6333 Telegraph Rd., Commerce, CA 90040, because of an alleged dangerous condition. Plaintiff alleges that as he was walking near gasoline pumps in the outdoor area of Defendant’s property, he “stepped on one of several of utility covers for the underground gasoline apparatus, which unbeknownst to Plaintiff was improperly placed and not secured,” and the cover flipped and caused Plaintiff to fall. (First Amended Complaint at p. 4, 5.) The operative First Amended Complaint alleges causes of action for negligence and premises liability.

Defendant now moves for summary judgment. Plaintiff opposes the motion, and Defendant filed a reply.

Defendant argues it is entitled to summary judgment because the evidence establishes that there was no unsafe condition on its property at the time of the incident, and because Defendant’s surveillance video shows that Plaintiff was not at the specific location at the time he claims the incident occurred. Defendant asserts that while Plaintiff alleges he was injured on Defendant’s property at 11:25 a.m. on April 28, 2017, the evidence shows that Plaintiff was not injured on Defendant’s property on this date.

Plaintiff argues that at his deposition he testified that on April 28, 2017, at 11:25 a.m., he was walking through Defendant’s parking lot where gas intake covers are located, and his foot went through one of the covers. Plaintiff contends that his deposition testimony must be accepted as true for purposes of this motion. Additionally, Plaintiff asserts that Scott Fossett (“Fossett”), who identifies himself as an Assistant Warehouse Manager for Defendant in the moving papers, testified that the surveillance video labeled as Exhibit B in Defendant’s motion had a glitch in that the video recording skips or jumps from 11:24:40 a.m. to 11:26:12 a.m. Plaintiff contends that this video thus does not establish that Plaintiff did not fall on a gas intake cover at 11:25 a.m. or shortly thereafter.

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) 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.) To determine the existence and scope of duty, courts consider the foreseeability of harm to the plaintiff, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the extent of the burden to the defendant of imposing a duty to exercise care with resulting liability for breach. (Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

In this case, Plaintiff alleges that on April 28, 2017, he fell and was injured at Defendant’s premises located at 633 Telegraph Rd., Commerce, CA 90040. (Mot. Undisputed Material Facts (“UMF”) 1.) Plaintiff testified that he was walking at or near the gas station area of the subject property when the alleged incident occurred. (Id. at 2.) Plaintiff alleges that he tripped and fell on a fuel intake valve cover in the gas station area of the property. (Id. at 3.) Plaintiff testified he was walking “side by side” with his mother through “a walkway, a coned-off way” at the gas station, and that he was injured after stepping on the second fuel intake cover in the coned-off area. (Id. at 4-5.) Plaintiff testified that the alleged incident occurred at 11:25 a.m. on April 28, 2017. (Id. at 6.)

Defendant asserts that two surveillance videos recorded the location of the alleged incident on April 28, 2017, from 10:00 a.m. to 1:30 p.m. and from 11:00 a.m. to 11:30 a.m. (Id. at 7.) Defendant contends that surveillance video 1, labeled as Exhibit A to Defendant’s Notice of Lodging, shows the coned-off area where the fuel intake covers are located on the right side of the recording, including the second intake cover on which Plaintiff claims he was injured. (Id. at 8.) Defendant avers that surveillance videos 1 and 2- video 2 is labeled as Exhibit B to Defendant’s Notice of Lodging- establish that Plaintiff did not slip or fall at or around 11:25 a.m. at or near the gas station of Defendant’s property. (Id. at 9.)

No other surveillance video camera angle could have recorded Plaintiff’s alleged incident on the date and time he claims he was injured. (Id. at 10.) Surveillance videos 1 and 2 show an individual walking alone at or near the location of the alleged incident at 11:23 a.m.; however, Plaintiff denies that he is the individual observed walking at this time. (Id. at 11-12.)

Defendant avers that Plaintiff was not injured after stepping on a fuel intake cover at Defendant’s property, and that there was no unsafe condition on Defendant’s property because the surveillance videos never captured any individual slipping, tripping, falling, or injuring themselves. (Id. at 13-14.) Defendant contends there was no unsafe condition on its property that was a substantial factor in causing Plaintiff’s alleged harm, and that it is not liable to Plaintiff. (Id. at 15-16.)

The Court has reviewed the surveillance footage submitted by Defendant. Surveillance video 1 indicates in yellow letting of the video, “Gas Entry,” and begins with a timestamp of approximately 10:01:14 a.m. and ends at about 1:31:07 p.m. (Mot. Notice of Lodging of Surveillance Video Evidence, Exh. A.) This video shows vehicles lining up in what appears to be a parking area of Defendant’s property, presumably to enter the gas station on Defendant’s premises. (Id.) The video further shows what appears to be a walkway with cones on the right side of the video; at 10:43:02 a.m. a clear view of the walkway of four cones is seen. (Id.) This is the alleged area where the incident occurred. (Mot. UMF 8.) At approximately 11:23:59 a.m., Video 1 shows a lone individual walking through the coned off area. (Mot. Notice of Lodging of Surveillance Video Evidence, Exh. A.) At about 11:24:50 a.m., the individual is seemingly seen looking down near the area where the fuel intake covers are located. (Id.) The individual then walks away from the coned-off area. At 11:25:46 a.m. two persons are seen walking towards the top of the parking area; however, they are not seen walking near the coned-off area as they walk to the right side off camera. (Id.) There are otherwise no persons that are seen walking through or near the coned-off area where the fuel covers are located for the remainder of the video. (Id.)

Surveillance Video 2 indicates in yellow lettering at the bottom, “IP North Parking,” and begins at approximately 11:01:13 a.m. and ends at 11:31:12 a.m. (Mot. Notice of Lodging of Surveillance Video Evidence, Exh. B.) The video shows the gas station on Defendant’s property at the top of the video. The coned-off area is seen to the top right of the video. Video 2 shows a lone individual walking near or through the coned-off area beginning at 11:23:47 a.m. Thereafter, at 11:24:40 a.m., the timestamp of the video jumps or skips to 11:26:12 a.m. (Id.) There are otherwise no persons seen walking side by side by or near the coned-off area for the remainder of the video.

The evidence is sufficient to meet Defendant’s moving burden to show that Plaintiff was not injured on its property as alleged by Plaintiff. The burden thus shifts to Plaintiff to raise a triable issue of material fact in this regard.

First, Plaintiff asserts that he testified at his deposition that as he was walking through the area where the fuel covers are located on April 28, 2017, at 11:25 a.m., his foot went through one of the covers. Plaintiff contends that this is sufficient to raise a triable issue of fact. However, Plaintiff does not dispute that Defendant’s videos depict the alleged time, date, and location of the alleged incident. Plaintiff denies being the lone individual seen walking near the relevant area at about 11:23 a.m. (Mot. UMF 12.) The videos do not otherwise show any persons walking side by side near the coned-off area at near 11:25 a.m. Accordingly, in this regard, the videos indisputably contradict Plaintiff’s testimony that he fell at or near the fuel intake covers on or about 11:25 a.m. while walking side by side with his mother. While Plaintiff contends that the area is obstructed in Video 1, the video is clear that no persons walk through or near the coned-off area at the time of the alleged incident. Further, although there are some cars seen blocking some of the cones in the area, there are otherwise no persons visible, nor would the vehicles present block any persons walking through or near the area. Plaintiff does not otherwise dispute that the videos are inaccurate in any manner, or that the alleged incident happened in any manner different than how he testified at his deposition. Therefore, because the video indisputably contradicts Plaintiff’s deposition testimony regarding the alleged incident, Plaintiff’s deposition testimony is insufficient to raise a triable issue of material fact. (See Scott v. Harris (2007) 550 U.S. 372, 379-380; see also Swigart v. Bruno (2017) 13 Cal.App.5th 529, 534. fn. 4.)

Second, Plaintiff argues that Video 2 does not contain any footage for 11:24:41 a.m. to 11:26:11 a.m. Plaintiff contends that Defendant therefore cannot use Video 2 as evidence that Plaintiff did not fall on Defendant’s property. Plaintiff is correct that Video 2 does not contain any footage for this period. Nevertheless, Video 1 does depict this missing timeframe, and it does not show any persons walking through or near the coned-off area and falling as Plaintiff alleges.

Based on the foregoing, Defendant’s evidence is sufficient to show that Plaintiff’s alleged incident did not occur on Defendant’s property at the time and location alleged. Plaintiff fails to raise a triable issue in this regard.

Hon. Michelle C. Kim

Judge of the Superior Court