Judge: Steven A. Ellis, Case: 21STCV29677, Date: 2024-04-29 Tentative Ruling
Case Number: 21STCV29677 Hearing Date: April 29, 2024 Dept: 29
Defendants’
Motion for Summary Judgment or, in the Alternative, for Summary Adjudication
Tentative
The
motion is denied.
Background
On August 11, 2021, Beatriz Valero
(“Plaintiff”) filed the complaint in this action against SBE Ent Holdings, LLC,
Umami Burger Hollywood Restaurant, LLC (collectively “Defendants”), and Does 1
through 50, asserting causes of action for negligence and premises liability
arising from a trip and fall on July 31, 2020, at a restaurant on Hollywood
Boulevard in Los Angeles.
Defendants filed their answer on November
30, 2021.
On March 3, 2023, Defendants filed this
motion for summary judgment. Plaintiff filed her opposition, along with
objections to Defendants’ evidence, on April 11, 2024. Defendants filed a reply,
along with objections to Plaintiff’s evidence, on April 19, 2024.
Legal Standard
“The purpose
of the law of summary judgment is to provide courts with a mechanism to cut
through the parties’ pleadings in order to determine whether, despite their
allegations, trial is in fact necessary to resolve their dispute.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code of Civil
Procedure section 437c, subdivision (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.)
As to each
cause of action as framed by the complaint, a defendant moving for summary
judgment or summary adjudication must satisfy the initial burden of proof by
presenting facts to show “that one or more elements of the cause of action ...
cannot be established, or that there is a complete defense to the cause of
action.” (Code Civ. Proc., § 437c, subd. (p)(2); see also Aguilar, supra,
25 Cal.4th at pp. 850-851; Scalf v. D. B. Log Homes, Inc. (2005) 128
Cal.App.4th 1510, 1520.) 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 the cause of action or a defense thereto.” (Code Civ. Proc.,
§ 437c, subd. (p)(2); see also Aguilar, supra, 25 Cal.4th at pp.
850-851.)
A plaintiff or
cross-complainant moving for summary judgment or summary adjudication must
satisfy the initial burden of proof by presenting facts to show “that there is
no defense to a cause of action if that party has proved each element of the
cause of action entitling the party to judgment on the cause of action.” (Code
Civ. Proc., § 437c, subd. (p)(1).) Once the plaintiff or cross-complainant has
met that burden, the burden shift to the defendant or cross-defendant to show
that a “triable issue of one or more material facts exists as to the cause of
action or a defense thereto.” (Ibid.)
The party
opposing a motion for summary judgment or summary adjudication may not simply
“rely upon the allegations or denials of its pleadings” but must instead “set
forth the specific facts showing that a triable issue of material fact exists.”
(Code Civ. Proc., § 437c, subds. (p)(1) & (p)(2). 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.)
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.)
Evidentiary Objections
Each side has submitted objections. Evidence
presented in support of, or in opposition to, a motion for summary judgment
must be admissible. (Code Civ. Proc., § 437c, subd. (d); Perry v. Bakewell Hawthorne LLC (2017) 2 Cal.5th 536, 541-43.) The court
must “consider all of the
evidence set forth in the papers, except the evidence to which objections have
been made and sustained.” (Code Civ. Proc., § 437c, subd. (c).)
Plaintiff’s objects to paragraphs 5 and 6 of
the Declaration of Channing Apodaca. The Court OVERRULES these objections.
Defendant objects to the Declaration of Enrique
Rivera. It appears that this objection is made as to the entire Declaration.
The Court OVERRULES this objection.
Defendant objects to Exhibit A of the
Declaration of Enrique Rivera. Exhibit A is his curriculum vitae. This
objection is frivolous. The Court OVERRULES this objection. The Court
admonishes Defendant not to make objections that are frivolous and without any
support in law or fact. They waste the time and resources of the Court,
distract the Court’s attention from more well-founded arguments, and undermine
the credibility of counsel asserting such objections.
Defendant objects to Exhibits B through E of
the Declaration of Enrique Rivera. The Court overrules these objections.
Defendant objects to Figure 1 of the
Declaration of Enrique Rivera. This appears to be the very same photograph that
is presented by Defendant as part of its own evidence in Exhibit A to the
Declaration of Channing Apodaca. It is unclear how Defendants could offer a
photograph in evidence in support of their motion but then object to the Plaintiff’s
use of the same photograph in connection with the opposition. In any event, the
Court OVERRULES this objection.
Defendant objects to Figures 2 through 3 of the
Declaration of Enrique Rivera. The Court OVERRULES these objections.
Discussion
On July 31,
2020, Plaintiff was working for Caviar, now known as DoorDash, and entered the Umami
Burger Hollywood Restaurant to pick up a food delivery order. (Defendant’s
Statement of Undisputed Material Facts [“DSUMF”], Nos. 1-2.) The order was not
ready, and so Plaintiff sat on a bench to wait. (DSUMF, No. 3.) When the order
was ready, Plaintiff attempted to stand up, but she alleges that her foot was
caught by a crossbeam underneath the bench that she was sitting on, causing her
to trip, fall, and sustain serious injuries. (DSUMF, Nos. 4, 6; Apodaca Decl.,
Exh. A.) Plaintiff alleges that the crossbeam underneath the bench was a
dangerous condition that is a proximate cause of her fall and resulting
injuries.
Plaintiff asserts causes of action for negligence
and premises liability. The basic
elements of a cause of action for negligence and for premises liability are the
same: (1) the existence of a legal duty;
(2) breach of that duty; (3) causation; and (4) resulting damages. (Brown
v. USA Taekwondo (2021) 11 Cal.5th 204, 213; Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158; Castellon v. U.S. Bancorp
(2013) 220 Cal.App.4th 994, 998.) The existence and scope of duty are legal questions
for the court.¿¿(Brown, supra, 11 Cal.5th at p. 213; Annocki¿v.
Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 36.)
Those who own,
possess, or control property generally have a duty to exercise ordinary care in
managing the property to avoid exposing others to an unreasonable risk of harm.
(Annocki, supra, 232 Cal.App.4th at p. 37.) If a dangerous condition exists, the
property owner is “under a duty to exercise ordinary care either to make the
condition reasonably safe for their [customers’] use or to give a warning
adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores,
Inc. (1960) 53 Cal.2d 443, 446.)
“It is well established in California that although
a store owner is not an insurer of the safety of its patrons, the owner does
owe 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.” (Moore v. Wal-Mart Stores, Inc.
(2003) 111 Cal.App.4th 472, 476.) “The care required is commensurate with the
risks involved.” (Ibid.) “[A]s to business invitees, the owner
should conduct frequent inspections.” (Ortega, supra,
26 Cal.4th at p. 1207.)
“A
plaintiff alleging injuries based on a dangerous condition must prove the
defendant either: (1) created the dangerous condition, or (2) knew or should
have known of the dangerous condition.” (See Peralta v. Vons Companies, Inc.
(2018) 24 Cal.App.5th 1030, 1036.) “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 [in many cases] a
key to establishing its liability.” (Ortega, supra, 26 Cal.4th at
p. 1206.) “[W]here the plaintiff relies on the failure to correct a dangerous
condition to prove the owner’s negligence, the plaintiff has the burden of
showing that the owner had notice of the defect in sufficient time to correct
it.” (Ibid.) “Most Courts of Appeal hold that a defendant is entitled to
judgment as a matter of law if the plaintiff fails to show that the dangerous
condition existed for at least a sufficient time to be discovered by ordinary
care and inspection.” (Id. at p. 1207.) “Whether a dangerous condition
has existed long enough for a reasonably prudent person to have discovered it
is a question of fact for the jury.” (Ibid.)
If a dangerous condition exists, the property owner is “under a
duty to exercise ordinary care either to make the condition¿reasonably safe ….
or to give a warning adequate to enable them to avoid the harm.”¿¿(Bridgman
v. Safeway Stores, Inc.¿(1960) 53 Cal.2d 443, 446; see also, e.g., Kinsman v. Unocal Corp. (2005) 37 Cal.4th 659, 672-73.) In some cases, and subject
to certain exceptions, however, a dangerous condition may be so obvious that
the condition itself serves as a warning, and the landowner may have no further
duty to remedy or warn of the condition. (See Kinsman, supra, 37 Cal.4th at p. 673; Montes v. YMCA of Glendale (2022) 81 Cal.App.5th 1134,
1142; Christoff
v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126; Krongos v.
Pacific Gas Electric Co. (1992) 7
Cal.App.4th 387, 393.)
Here,
Defendants argue: (1) that there was no dangerous condition (or, at most, a
non-actionable trivial defect), and therefore Defendants had no duty to warn;
(2) that Defendants did not have any actual or constructive notice of any
dangerous condition; (3) that any dangerous condition did not cause any
injury to Plaintiff; and (4) that any dangerous condition was open and obvious.
(Although there is some obvious tension in these arguments, Defendants are
certainly allowed to argue in the alternative.) The Court will consider each of
these arguments in turn.
Dangerous
Condition
Defendants
argue that there was no dangerous condition present, or that any danger is as a
matter of law within the scope of the trivial defect defense. (Mem. at pp. 6-7,
11-12.) The only evidence they present, however, is an unsworn letter from a
Mr. Michael V. Nicholas, dated December 19, 2022, who states that he has
reviewed “all the material provided” and has “concluded that neither the table
or bench seat was a factor in this incident.” (Escobar Decl., Exh. C.) Even
assuming that this evidence is admissible, it addresses only causation, not
whether a dangerous condition was present.
Moreover,
Plaintiff presents significant expert testimony to the contrary. (Rivera Decl.,
¶¶ 9-17.) Even assuming that Defendants have presented evidence of an
absence of a dangerous condition, Plaintiff has presented evidence that points
in the other direction, creating an issue of fact for trial.
Creation of
Dangerous Condition or Actual or Constructive Knowledge of it
Defendants
argue that they had no actual or constructive knowledge of any dangerous
condition in the restaurant. (Mem., at pp. 7-8.) In support, they present the
declaration of Channing Apodaca, shift supervisor, who states that there were
no other incidents of a trip and fall involving the same table and bench during
the period of 2018 to 2020. (Escobar Decl., Exh. D [Apodaca Decl., ¶¶ 4-6.].)
The test,
however, is not whether a particular shift supervisor had knowledge of a prior
injury involving the same table and bench during a two-year period. As noted above,
a plaintiff may proceed on a dangerous condition claim (stated as either a negligence
or premises liability cause of action) by showing either (1) that the defendant
created the dangerous condition; or (2) knew or should have known of the
dangerous condition. (Peralta,
supra, 24 Cal.App.5th at p.
1036.) Proof of prior incidents or injuries is not required.
Here, the allegedly dangerous condition was
the crossbeam under the bench. Defendants plainly created this condition; there
is no suggestion that anyone other than Defendants, or someone acting at
Defendants’ direction, placed the bench and crossbeam in the restaurant.
Similarly, Defendants certainly knew it was there; there is no suggestion that
the bench and crossbeam had been placed in the restaurant only recently before
the accident, without Defendants’ knowledge.
Thus, Defendants have not made a sufficient
showing to obtain summary judgment on the element of creating or having actual
or constructive knowledge of the allegedly dangerous condition.
Causation
Defendants argue that the allegedly
dangerous condition did not cause Plaintiff to trip, fall, and sustain
injuries. (Mem., at pp. 8-9.) In support, Defendants point in general terms to
Plaintiff’s deposition, without providing any page and line citations.
Defendants do provide excerpts of the transcript of Plaintiff’s deposition,
which the Court has reviewed. Plaintiff testified: that she did not recall
whether she noticed the crossbeam while she was sitting on the bench; that when
she stood up, “one of my shoes got stuck on the bottom,” and she fell as a
result. (Escobar Decl., Exh. B [Plaintiff’s Deposition Transcript, at p. 22:7-25.)
A trier of fact could draw a reasonable
inference from this testimony that Plaintiff fell on the crossbeam under the bench.
Defendant also argue that Plaintiff
testified that as she was falling she was focused on protecting her phone. (See
id., at pp. 22:14-25, 23:12-16.) That evidence could present an issue of
comparative negligence but does not compel the trier of fact to find that, as a
matter of law, that there was no causation.
Open and Obvious
Defendants
argue that the allegedly dangerous condition was so open and obvious that, as a
matter of law, Defendants had no duty to remedy the condition or warn. (Mem.,
at pp. 10-11.)
Whether a dangerous condition is open and
obvious has long been viewed as a question of fact. (E.g., Chance v. Lawry’s, Inc. (1962) 58 Cal.2d 368, 374; Tuttle v.
Crawford (1936) 8 Cal.2d 126, 131-132; Beauchamp v. Los Gatos Golf
Course (1969) 273 Cal.App.2d 20, 35-36.) As is true with other questions of
fact, this issue may be decided as a matter of law when the evidence is so
one-sided as to support only one reasonable inference. (E.g., Montes, supra,
81Cal.App.5th at p. 1142; Jacobs
v. Coldwell Banker Residential Brokerage Co.
(2017) 14 Cal.App.5th 438, 446-449; Edwards v. California Sports, Inc.
(1988) 206 Cal.App.3d 1284, 1289.)
Here, in contrast, more than one reasonable
inference could be drawn from the evidence in the record. Plaintiff presents
expert opinion testimony that explains, among other things, that patrons and
other invitees sitting at a bench in a restaurant would reasonably and
foreseeably not necessarily check underneath the bench for a crossbeam before
standing up. (Rivera Decl., ¶¶ 11-14.) The trier of fact could credit this
testimony.
Conclusion
In sum, Defendants have not shown that one or more elements of Plaintiff’s causes
of action cannot be established. (Code Civ. Proc., § 437c, subd. (p)(2).)
Accordingly, the Court DENIES Defendants’
motion for summary judgment or, in the alternative, for summary adjudication.
Moving
Party to give notice.