Judge: Stephen Morgan, Case: 20AVCV00087, Date: 2022-08-04 Tentative Ruling

                                                                           Department A14 Tentative Rulings 

If parties are satisfied with the tentative ruling, parties may submit by emailing the courtroom at ATPDeptA14@LACOURT.ORG. 

If a matter is also scheduled for a CMC, TSC, OSC, etc., an appearance is still required even if the parties are willing to submit on the tentative ruling.



Case Number: 20AVCV00087    Hearing Date: August 4, 2022    Dept: A14

Background

 

This is a premises liability action. Plaintiff Thomas Aitchison (“Plaintiff”) alleges that on or around March 31, 2019 he was on Defendants California Department of Food and Agriculture; State of California; State of California, 50th Agricultural District, City of Lancaster; Danielle Potts; and Dan Jacobs’ premises located at Antelope Valley Fair and Event Center, 2551 W. Avenue H, Lancaster, California 93536 (the “Premises”) when he stepped onto a laminated bingo card/pull tab, causing him to fall to the ground. Plaintiff father alleges that the fall caused severe injuries, including a fractured elbow.

 

On February 05, 2020, Plaintiff filed his Complaint, alleging one cause of action for Premises Liability.

 

On July 29, 2020, Plaintiff amended the fictitious name of Doe 1 to Antelope Valley Fair Association (“AVFA”).

 

On August 04, 2020, AVFA filed its Answer.

 

On August 06, 2020, Plaintiff dismissed California Department of Food and Agriculture; State of California; State of California, 50th Agricultural District; Danielle Potts, and Dan Jacobs.

 

On January 04, 2021, Applied Risk Services, Inc. for California Insurance Company (“Applied Risk Services”) filed a Motion for Leave to Intervene, subsequently granted on February 09, 2021.

 

On February 16, 2021, Applied Risk Services filed their Complaint in Intervention against Defendants City of Lancaster and AVFA, alleging three causes of action for (1) General Negligence, (2) Premises Liability, and (3) Subrogation Pursuant to Labor Code Section 3850 et seq.

 

On June 24, 2021, Plaintiff amended the fictitious name of Doe 2 to Friends of the Antelope Valley Fair, Inc. (“Friends”).

 

On November 04, 2021, Friends filed their Answer.

 

On May 20, 2022, Friends filed their Motion for Summary Judgment, or in the alternative, Summary Adjudication.

 

On July 18, 2022, Plaintiff filed his Opposition.

 

On July 29, 2022, Friends filed their Reply and Objection to Plaintiff’s Evidence Submitted in Opposition to Defendant’s Motion for Summary Judgment.

 

On August 01, 2022, Plaintiff filed his Responses to Friends’ Objection to Plaintiff’s Evidence Submitted in Opposition to Defendant’s Motion for Summary Judgment.

 

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Analysis

 

Standard for Motion for Summary Judgment – The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co.¿(2001) 25 Cal.4th 826, 843.) Cal. Code Civ. Proc.¿§437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.”¿¿(Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)¿ “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.”¿ (Juge¿v. County of Sacramento¿(1993) 12 Cal.App.4th 59, 67, citing¿FPI Development, Inc. v. Nakashima¿(1991) 231 Cal. App. 3d 367, 381-382.)¿¿ 

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As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Cal.¿Code Civ.¿Proc.¿§437c(p)(2);¿Scalf¿v. D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc.¿(2006) 39 Cal.4th 384, 389.)¿¿ 

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Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. To establish a triable issue of material fact, the party opposing the motion must produce substantial responsive evidence. (Sangster v.¿Paetkau¿(1998) 68 Cal.App.4th 151, 166.)¿¿ 

 

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Discussion

 

Application – Friends contends that Plaintiff’s evidence is speculative and conjectural, thus rendering it insufficient to oppose a motion for summary judgment.

 

Friends presents that Plaintiff does not know how he fell or what caused him to fall (UMF No. 3; Motion, Exh. C 105:15-17; 175:15 – 176:2), that Plaintiff did not feel either of his feet slip (UMF No. 4; Motion, Exh. C 105:15 – 106:16), that Plaintiff did not observe anything on the floor prior to his fall (UMF 5 – 6; Motion, Exh. C 106:24 – 107:6, 122:16-18; 122:24 – 123:3; 123:15-17), and that Plaintiff has no recollection of stepping on anything on the floor just prior to his fall (UMF No. 8; Motion, Exh. D 103:4 – 7; Motion, Exh. E No. 52). Friends argues that Plaintiff’s allegations are based entirely on a photograph of himself on the floor taken after his fall. (See Motion, Exh. A.) As to the bingo cards on the ground, Friends presents that (1) Plaintiff did not know how long the items had been on the floor, did not know whether the items ever moved, and did not know which of the items he allegedly stepped on (UMF Nos. 14 and 16; Motion, Exh. D 104:2 – 11 and 108:10 – 14); and that the items on the floor are not the bingo cards used at the Premises (UMF Nos. 19 – 20; Decl. Danielle Potts ¶¶ 5-6.)

 

Friends argues that Plaintiff cannot establish negligence against Friends under California law as the cards on the floor were bingo cards. Alternatively, Friends argues that even if the cards on the floor were bingo cards, Plaintiff cannot establish the requisite element of causation as “plaintiff must provide evidence that the defendant's conduct was a substantial factor in causing the harm and that ‘proof of causation cannot be based on an expert's opinion based on inferences, speculation and conjecture.’ ” (Motion, 6:15 – 19 [citing Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 777].) Friends cites to Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205-06 which holds: “a plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not the conduct of the defendant was a cause in fact of the result. There mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.”

 

Plaintiff presents that the Court must consider not only the direct evidence presented, but also reasonable inferences drawn from it (citing to Code Civ. Proc., § 437c(c); Mann v. Cracchiolo (1985) 38 Cal.3d 18, 36). Plaintiff presents the following disputed facts: Plaintiff felt something slippery under his feet and that he slipped on a bingo pull tab. (Plaintiff’s Separate Statement Nos. 4, 8; Opp., Exh. A 105:5-8.)

 

Plaintiff also presents an additional argument that Friends created an additional hazard by blocking the aisle with the audio-visual cart which created a blind corner and failed in its duty to warn Plaintiff of the hazardous condition. The Court declines to address this argument as the audio-visual cart was not alleged in a pleading or claim.

 

Friends’ Reply focuses on (1) inconsistencies in Plaintiff’s depositions and (2) the audio-visual cart as a new theory of liability. As mentioned, ante, the Court declines to address this argument as the audio-visual cart was not alleged in a pleading or claim. Friends cites to Jones v. Awad (2019) 39 Cal.App.5th 1200, arguing that Plaintiff lacks any evidence that the two individuals at the table had knowledge of the items on the floor. Additionally, Friends presents that Plaintiff does not dispute that the items being sorted by Danielle Potts (“Potts”) and her daughter were 8.5” x 11” bingo papers, that there were no bingo activities on the day of the incident, and a janitorial service is responsible for clean-up. Friends emphasizes that Plaintiff’s theories are premised upon speculation and conjecture.

 

The elements of¿a premises liability and¿negligence¿cause of action are the same:¿duty, breach, causation and damages.¿ (Castellon v. U.S. Bancorp¿(2013) 220 Cal.App.4th 994, 998.)¿ “The owner of premises is under a duty to exercise ordinary care in the management of such premises¿in order to¿avoid exposing persons to an unreasonable risk of harm.¿ A failure to fulfill this duty is negligence.”¿ (Brooks v. Eugene Burger Management Corp.¿(1989) 215 Cal.App.3d 1611, 1619;¿Annocki¿v. Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 37.)¿¿While an¿owner of premises is not an insurer of the safety of its patrons, the owner still owes them a duty to exercise reasonable care in keeping the premises reasonably safe.¿ (Ortega v. Kmart Corp.¿(2001) 26 Cal.4th 1200, 1205.)¿ “A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.”¿ (Ibid.)¿¿

 

“ ‘[P]roperty owners are liable for injuries on land they own, possess, or control.’ But . . . the phrase ‘own, possess, or control’ is stated in the alternative. A defendant need not own, possess and control property in order to be held liable; control alone is sufficient.” (Alcaraz v. Vece (1997) 14 Cal.4th1149, 1162. (“Alcaraz”).) In Alcaraz, the California Supreme Court determined that the superior court erred in excluding evidence regarding defendants’ maintenance of the lawn and their construction of a fence surrounding the lawn subsequent to the incident at issue. (Id. at 1166.) With regards to maintenance, “[e]vidence that defendants maintained the lawn on the strip of land owned by the city certainly has some "tendency in reason to prove or disprov whether defendants exercised control over that land. This is not to say that the simple act of mowing a lawn on adjacent property (or otherwise performing minimal, neighborly maintenance of property owned by another) generally will, standing alone, constitute an exercise of control over property and give rise to a duty to protect or warn persons entering the property. But it cannot be doubted that such evidence is relevant on the issue of control.” (Id. at 1167; see also Sabetian v. Exxon Mobil Corp. (2020) 57 Cal.App.5th 1054 [“ ‘Premises liability ‘ “ ‘is grounded in the possession of the premises and the attendant right to control and manage the premises’ ” ’; accordingly, ‘ “ ‘mere possession with its attendant right to control conditions on the premises is a sufficient basis for the imposition of an affirmative duty to act.’ ” ’ ” ].)

 

The Court notes that, while it is presented by Potts that Antelope Valley Fair & Event Center provides maintenance, janitorial and cleaning services with respect to the floor area of the Event Center, including the area where bingo games are held by Friends of the Antelope Valley Fair, a jury could reasonably find that Friends had some sort of control over the area of the incident and Friends was utilizing the Premises, specifically the area of the incident, for their events.

 

The plaintiff has the burden to prove the owner, or in this case, the entity with control, had actual or constructive notice of the defect in sufficient time to correct it.¿ (Louie v.¿Hagstrom’s¿Food Stores¿(1947) 81 Cal.App.2d 601, 606.)¿ “There must be some evidence . . .¿ 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.)¿ The plaintiff has the burden because “shifting the burden to defendant would, contrary to existing negligence law, permit an inference of negligence to be drawn against the owner based solely on the fact that the fall or accident occurred.”¿ (Ortega,¿supra, 26 Cal.4th at p. 1206.)¿¿However, the plaintiff need not show actual knowledge where evidence suggests the dangerous condition was present for a sufficient¿period of time¿to charge the owner with constructive knowledge of its existence, which may be shown by circumstantial evidence.¿ (Ibid.)¿ A plaintiff may prove a dangerous¿condition existed for an unreasonable time with circumstantial evidence that an inspection had not been made within a particular¿period of time¿prior to the accident, warranting the inference that the defective condition existed long enough that a person exercising reasonable care would have discovered it.¿ (Id. at p. 1210.)¿¿“The exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, because, obviously, it varies¿according to the circumstances.”¿ (Louie,¿supra, 81 Cal.App.2d at p. 608.)¿ “It remains a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care.”¿ (Ortega,¿supra, 26 Cal.4th at p. 1213.)¿¿To meet her burden of proof, Plaintiff “must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result.¿ A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.”¿ (Ortega,¿supra, 26 Cal.4th at pp. 1205-1206.)¿¿

 

Though Friends presents that Plaintiff did not know when the items on the floor became present (UMF No. 12; Motion, Exh. C, 123:22 – 124:4), Plaintiff has presented that the night prior to the incident, there was trash, including bingo pull tabs, on the floor pathway where the incident occurred. (Plaintiff’s Separate Statement No. 12; Opp., Exh. A, 58:14 – 24.) Thus, “[i]t remains a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care[,]” and a jury could reasonably infer that Friends had constructive notice of the condition. (See Ortega,¿supra, 26 Cal.4th at pp. 1205-06, 1210.)

 

Friends attempts to meet its burden for summary judgment by introducing Plaintiff’s Deposition testimony. The Court has read both Plaintiff’s depositions (Vol. 1 and Vol. 2.) Regarding Plaintiff’s recollection of what happened, the testimony is inconsistent. The Court has reviewed all of the evidence presented by the parties in support and opposition to Friends’ Motion for Summary Judgement. It would strain credulity to conclude, as a matter of law, that a jury could not reasonably find that Plaintiff had actual awareness that he slipped. Further, in both depositions, Plaintiff believes that he slipped on a bingo pull tab/card. (See Motion, Exh. C 122:5 – 15; Opp., Exh. A 125: 19 – 25; Opp., Exh. B 113:25 and 114:1-4.) While the Court does not believe that such inconsistent statements are enough to negate an essential element, or to establish a defense of the Premises Liability cause of action, they can provide fertile ground for impeachment at trial. (See Cal. Evid. Code §§769–770; Cal. Code Civ. Proc. §2025.620(a).)

 

Cal. Code Civ. Proc.¿§437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.”¿¿(Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) As a liberal construction of the evidence can create an inferrence that (1) Friends had some control over the Premises, specifically the area of the incident; (2) Friends had constructive knowledge that items were on the floor; and (3) that Plaintiff slipped on the items on the floor, Defendant fails to satisfy its initial burden of proof by presenting facts to negate an essential element, or to establish a defense. (Cal.¿Code Civ.¿Proc.¿§437c(p)(2);¿Scalf¿v. D. B. Log Homes, Inc.¿(2005) 128 Cal.App.4th 1510, 1520.)

 

Accordingly, the Motion for Summary Judgment, or in the alternative, Summary Adjudication, is DENIED.

 

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Conclusion

 

Defendant Friends of the Antelope Valley Fair, Inc.’s Motion for Summary Judgment, or in the alternative, Summary Adjudication is DENIED.