Judge Michelle C. Kim, Case 20STCV38972 2023-04-28 Tentative Ruling

Plaintiff Honey Milestone filed this action against defendants IKEA US Retail LLC, et al. for injuries relating to Plaintiff’s slip and fall “near the Ikea store located at 600 S Ikea Way, in the City of Burbank, County of Los Angeles, California 91502.” (Compl. at p. 4.) The complaint alleges causes of action for negligence and premises liability.

On November 9, 2021, Plaintiff filed an Amendment to Complaint naming Federal Building Services, Inc. (“FBS”) as Doe 1.

Defendant FBS now moves for summary judgment as to Plaintiff’s complaint. Plaintiff opposes the motion, and FBS filed a reply.

This matter was last set for hearing on March 8, 2023, where it was continued to April 28, 2023, after the Court noted that timely reply papers had not been received. FBS’ reply papers were filed on March 7, 2023. On March 8, 2023, FBS’ counsel filed a declaration attesting that the reply papers were served on Plaintiff on March 3, 2023, but due to counsel’s mistake, the papers were not filed until March 7, 2023. Because the reply papers were served on Plaintiff on March 3, 2023, and in the absence of any prejudice, the Court exercises its discretion to consider the reply papers.

Additionally, on February 28, 2023, defendant IKEA North America Services, LLC (“IKEA North America”), erroneously and additionally sued as IKEA US Retail LLC, IKEA Property, Inc. and IKEA U.S. West, Inc., filed a separate statement in response to certain Additional Material Facts stated in Plaintiff’s separate statement filed with the opposition. On March 7, 2023, Plaintiff filed an objection to IKEA North America’s separate statement.

FBS provides that Plaintiff claims she suffered injuries after slipping on some banana on the floor of the bistro area of an IKEA store during the store’s business hours. FBS argues it is entitled to summary judgment because the evidence shows that FBS did not have control over the area where the incident occurred, nor was FBS responsible for inspecting or maintaining the area. FBS asserts that it did not receive any requests to clean up any mess in the area where Plaintiff fell, so FBS contends it cannot be liable to Plaintiff because it did not owe any duty to Plaintiff. Further, FBS argues that it lacked notice of any dangerous condition in time, and with the ability, to remedy it.

Plaintiff argues that FBS is a contractor hired by the IKEA store to provide cleaning and housekeeping services. Plaintiff contends that FBS voluntarily assumed IKEA’s duty to patrol the bistro area for spills, and that FBS’ own policies and contractual obligations required FBS to monitor the bistro area and respond to spills FBS encountered. Additionally, Plaintiff argues that FBS at the least had constructive notice of the dangerous condition because FBS did not reasonably inspect the bistro area after assuming the duty to do so, and because the subject piece of banana was on the floor long enough to be seen by a reasonable inspection.

IKEA North America filed a separate statement opposing Plaintiff’s Additional Material Facts Nos. 32-34 contained in Plaintiff’s Responsive Separate Statement filed with Plaintiff’s opposition. Plaintiff objects to IKEA North America’s separate statement arguing that IKEA North America’s separate statement is improper because it does not have standing to submit documents in support of FBS’ summary judgment motion.

IKEA North America is not opposing FBS’ motion, and FBS is not seeking any relief against IKEA North America. Rather, IKEA North America is opposing certain purported facts in Plaintiff’s responsive separate statement. IKEA North America, however, does not provide any authority showing that it is entitled to oppose Plaintiff’s responsive separate statement, and CCP § 437c does not contain language authorizing such. (See CP § 437c(p)(2) [If the defendant meets its burden to show that a cause of action has no merit by showing that an element of the cause of action cannot be established, “the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”].)

Accordingly, the Court declines to consider IKEA North America’s separate statement.

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.)

“A defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocally established, summary judgment is proper. [Citation.]” (Isaacs v. Huntington Memorial Hospital (1985) 38 Cal.3d 112, 134.) There are exceptions to this general rule where a person has voluntarily assumed a duty to act, either by contract or by his or her actions (Interinsurance Exchange of the Automobile Club of Southern California (2002) 161 Cal.App.3d 571, 575), or where a person creates the danger that causes the harm or increases a foreseeable risk of harm. (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, 1081).

Here, FBS asserts that on November 23, 2019, FBS contracted with IKEA to provide certain limited janitorial, cleaning and porter services for the subject IKEA store. (Mot. Undisputed Material Fact (“UMF”) 1.) As it relates to the bistro/exit area where the incident occurred at the IKEA store, FBS contends that it contracted to provide a comprehensive floor cleaning once a day before the store opened, which occurred at approximately 4 or 5 a.m. (Id. at 2.) FBS states that it did not provide janitorial services in the bistro area during regular business hours at the store. (Id. at 3.) FBS asserts that it did not conduct any inspections of the bistro area, and that IKEA store employees were responsible for the operation, inspection, and maintenance of the bistro area. (Id. at 4-5.) FBS contends that during regular business hours at the IKEA store, FBS offered only limited “as needed” services assisting IKEA employees with cleaning spills in the bistro area. (Id. at 6.) FBS avers that it did not conduct inspections of the bistro area and instead only responded to requests from IKEA store employees to assist with cleaning a specific spill. (Id. at 7.) FBS states that absent a specific request for assistance from an IKEA employee, FBS did not clean or maintain the bistro area during regular business hours. (Id. at 8.)

Plaintiff contends she slipped and fell in the bistro area of the store at or around 8:30 p.m.; Plaintiff believes she slipped on a piece of food, which Plaintiff believes was a banana, that was left on the ground. (Id. at 9-10.) Plaintiff claims that after her fall, an IKEA employee apologized to her for not performing a routine cleaning of the area due to a lack of time. (Id. at 11.) FBS asserts IKEA never made a request to FBS to clean up any food debris in the bistro area of the store prior to or after Plaintiff’s fall. (Id. at 12.)

The foregoing is sufficient to meet FBS’ moving burden to show that it did not own, control, or maintain the subject property where the incident happened. (See Isaacs, 38 Cal.3d at 134.) The burden therefore shifts to the Plaintiff to raise a triable issue of material fact in this regard.

In opposition, Plaintiff does not directly dispute the terms of FBS’ contract with IKEA. (See Opp. UMF 1-2.) Instead, Plaintiff argues that FBS voluntarily assumed the duty to patrol and clean the bistro area and therefore had control of the area at the time of the incident. Plaintiff argues that FBS undertook a duty that IKEA owed to Plaintiff, so FBS is liable under a negligent undertaking claim.

As FBS argues in its reply, Plaintiff’s complaint does not include any allegations supporting a negligent undertaking cause of action against FBS. (Mot. Compendium of Exhibits Exh. 1.) The pleadings serve as an outer measure of materiality, and the motion may not be granted or denied based on issues not raised in the pleadings. (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98 n. 4.) Nevertheless, Plaintiff fails to raise a triable issue of material fact under a negligent undertaking theory.

One who, “having no initial duty to do so, undertakes to provide protective services to another, will be found to have a duty to exercise due care in the performance of that undertaking if one of two conditions is met: either (a) the volunteers failure to exercise such care increases the risk of harm to the other person, or (b) the other person reasonably relies upon the volunteers undertaking and suffers injury as a result.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 249.) In a situation where an actor has undertaken to render services for the protection of a third person, the negligent undertaking doctrine may apply. (Mukthar v. Latin American Security Service (2006) 139 Cal.App.4th 284, 289.)

“To establish a duty of care to a third person based on the negligent undertaking doctrine, a plaintiff must show: (1) the defendant undertook to render services to another; (2) the services were of the kind the defendant should have recognized as necessary for the protection of third persons; and (3) either (a) the defendant's failure to exercise reasonable care increased the risk of harm beyond what existed without the undertaking, (b) the undertaking was to perform a duty owed by the other to the third persons, or (c) a harm was suffered because the other or third persons relied on the undertaking.”

“ ‘[T]he scope of any assumed duty depends upon the nature of the undertaking.’ [Citation.] The defendant ‘must specifically have undertaken to perform the task that he is charged with having performed negligently, for without the actual assumption of the undertaking there can be no correlative duty to perform that undertaking carefully.’ [Citation.]” (Id., supra, at p. 84.)

Plaintiff, in this case, argues that FBS voluntarily assumed IKEA’s duty to maintain the bistro area when its evening supervisor, Gerardo Patricio, patrolled the IKEA store with the knowledge and consent of FBS. Plaintiff contends that in order to perform the contracted for services, FBS had to patrol the store to determine when the trash had to be changed, and Plaintiff asserts that FBS’ policy was that FBS employees were required to clean spills and hazards they encountered when they were performing their duties. Further, Plaintiff contends that FBS’ evening supervisor would patrol the store with his cleaning cart, and that on the date of the incident, the evening supervisor can be seen on surveillance footage patrolling and cleaning the subject area.

However, although Plaintiff contends that FBS’ evening supervisor voluntarily patrolled the store, Plaintiff does not submit evidence showing that the evening supervisor’s patrols were intended to undertake the duty to inspect the bistro area for any hazardous or dangerous conditions on the floor. (See Barenborg, 33 Cal.App.5th at 84.) The surveillance video footage submitted by the parties shows that FBS’ evening supervisor was in the bistro/exit area approximately one hour before the incident. (Mot. Compendium of Exhibits Exh. 9; Opp. Compendium of Exhibits Exh. A.) At about the 50 second mark of the video, the evening supervisor is seen exiting an elevator in the exit area with a cleaning cart. The supervisor moves shopping carts near the exit doors to the exit area across from the elevators. The supervisor then is seen seemingly noticing and sweeping something near a table in the bistro area. Afterwards, the video does not depict what the supervisor is doing in the store. Furthermore, at the time the supervisor is seen on video, the alleged food item, or banana, that caused Plaintiff to slip and fall is not seen on the floor. The evidence suggests that the supervisor patrolled, or walked through, the store as he wanted to, but there is no evidence that FBS or its employees voluntarily assumed a duty to conduct reasonable inspections of the store or the bistro area.

Plaintiff’s contentions that the FBS employees were required to clean up spills and he encountered them, that FBS employees monitored trash levels, and that FBS employees were expected to respond to spills reported by customers does not change this analysis. Even if FBS’ employees were required to perform these tasks, this does not mean that FBS or its employees voluntarily assumed the duty to keep the store’s floors clear of any hazards, including the bistro area. FBS must have specifically undertaken to perform the task that FBS is charged with performing negligently, which is not demonstrated here. There is thus no showing that FBS assumed a duty to regularly clean or inspect the bistro area. Plaintiff does not otherwise contend that FBS increased the risk of harm to Plaintiff beyond what existed, or that Plaintiff was injured because IKEA or Plaintiff relied on FBS to clean or maintain the bistro area.

Additionally, Plaintiff contends, without citation to any authority, that policy considerations weigh in favor of finding a duty because FBS’ employees were part of the overall response to spills and hazardous conditions at the IKEA store. However, the fact that IKEA and FBS contracted for FBS to provide limited cleaning services at the subject store does not warrant finding that FBS owed a duty to Plaintiff for any and all spills inside the store that FBS was otherwise not responsible for under its contract with IKEA.

Based on the foregoing, Plaintiff fails to raise a triable issue of material fact as to FBS’ purported control of the property. In light of this ruling, the Court need not reach the remaining issues.

Hon. Michelle C. Kim

Judge of the Superior Court