Judge Steven A. Ellis, Case Number: 22STCV03175, Date: 2025-02-14 Tentative Ruling

Judge: Steven A. Ellis, Case: 22STCV03175, Date: 2025-02-14 Tentative Ruling

Case Number: 22STCV03175 Hearing Date: February 14, 2025 Dept: 29

Arredondo v. The Kroger Co.
22STCV03175
Defendant’s Motion for Summary Judgment

Tentative

The Court will call this matter.

The Court is not able to view the video (Exhibit A) lodged with the Court. Moving party is ordered to be prepared to display the video to the Court during the hearing.

The Court will hear argument on all issues raised in the papers, including, but not limited to, on the following questions.

On the causes of action for premises liability and negligence:

First, the Court cannot meaningfully assess the issue of causation without first identifying the alleged breach. What is the alleged breach here? Is it the failure to remove a visibly intoxicated person from the store? Or is the breach the failure of the cashier to intervene or take some other action to obtain assistance (for example, by calling the store manager or calling the police)?

Second, what is the evidence in the record regarding causation? What is the connection between the alleged breach by Defendant and the injuries sustained by Plaintiff. (The Court understands that Plaintiff presents evidence that the attacker’s actions caused her to sustain injury – but that’s not the issue here, on Defendant’s motion for the summary judgment.) What evidence has Defendant presented to carry its initial burden, as a defendant moving for summary judgment, that Plaintiff cannot establish the element of causation? If Defendant has met this initial burden, what evidence is there in the record that would permit the finder of fact at trial to draw a reasonable inference or otherwise conclude that it is more likely than not that if Defendant had not breached its duty, the attack would not have occurred?

Third, Defendant argues in a single sentence in its memorandum that it did not create the dangerous condition. Is that intended to be an independent argument, or is it part of the causation argument? If it is intended to be an independent argument, is Defendant arguing that it would not constitute a breach if Defendant knew or should have known that the attacker was drunk and potentially dangerous? Has Defendant presented any evidence to carry its initial burden on summary judgment of showing that Plaintiff cannot establish that Defendant knew, or had reason to know, that the attacker was drunk or otherwise potentially dangerous to customers?

On the cause of action for negligent hiring, supervision, or retention:

First, what evidence has Defendant presented to carry its initial burden of showing that Plaintiff cannot establish one or more elements of this cause of action? Defendant’s Statement of Undisputed Material Facts appears to be silent on this issue. If Defendant carried its initial burden, what is Plaintiff’s evidence on this point?

Second, Defendant argues that this cause of action “lacks merit and is irrelevant” under Diaz v. Carcamo (2011) 51 Cal.4th 1148. The Diaz case arose in the context of an injury caused by a vehicle accident in which defendant employer conceded that the driver was acting within the course and scope of employment at the time of the accident, admitting vicarious liability. The California Supreme Court held that, once that concession was made, the plaintiff could not also pursue a cause of action for negligent entrustment. Is there any case law that extends the Diaz holding to a factual situation similar to this one, where the issue is a third-party attack rather than a negligent driving, and the cause of action asserted by plaintiff is not for negligent entrustment but for negligent hiring, supervision, or retention?

Third, causation is an element of a cause of action for negligent hiring, supervision, or retention, just as it is an element of a cause of action for negligence and for premises liability. If the Court were to agree with Defendant that, as a matter of law, Plaintiff cannot establish causation on the negligence and premises liability causes of action, would the same analysis apply to the negligent hiring, supervision, or retention cause of action – or is there some different argument or analysis as to the causation issue on this cause of action?

Background

On January 26, 2022, Alexandra A. Arredondo (“Plaintiff”) filed a complaint against The Kroger Co. dba Ralphs Grocery Company, John Doe, and Does 1 through 100, asserting causes of action for premises liability, general negligence, assault, and negligent hiring, supervision, or retention, all arising out of an incident on April 10, 2021, in which Plaintiff alleges that John Doe attacked her by throwing a 18-pack of beer at her while she was shopping.

On September 14, 2022, Defendant Hughes Markets, Inc. dba Ralphs (erroneously sued as The Kroger Co. dba Ralphs Grocery Company) (“Defendant”) filed its answer.

On March 6, 2024, Defendant filed this motion for summary judgment. The motion was initially set for hearing on May 23, 2024, and was continued on several occasions. Plaintiff filed an opposition on January 13, and Defendant filed a reply on January 17.

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.)

Objections to Evidence

Defendant asserts four objections to Plaintiff’s evidence.

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 by the court.” (Code Civ. Proc., § 437c, subd. (c).)

The Court overrules all four objections.

Discussion

On April 10, 2021, Plaintiff went to a Ralphs location on Hawthorne Boulevard in Rancho Palos Verdes (the “Store”) to purchase food. (Defendant’s Statement of Undisputed Material Facts [“DSUMF’], Nos. 1-2.) Plaintiff had shopped at this Ralphs, without incident, on numerous occasions during the prior seven years. (DSUMF, Nos. 3-6.)

On the date of the attack, Plaintiff shopped for approximately 45 minutes before getting in line at about 8:13 pm to check out. (DSUMF, Nos. 7, 14.) The first time she saw the attacker, an unknown male who Plaintiff had not seen before, was when the attacker was standing behind her in line. (DSUMF, Nos. 8, 10-12, 15.) Plaintiff placed her groceries on the conveyor belt, and then the attacker started pushing Plaintiff’s groceries. (DSUMF, Nos. 16-17.)

Plaintiff said to the attacker, “Please, sir. It’s COVID. … Please don’t touch my groceries.” (Plaintiff Depo., at 44:7-9.) Plaintiff testified that the attacker “wasn’t giving me physical space.” (Id., at 44:11.) “He was very close to my rear end. He was very intrusive.” (Id., at 44:11-12.)

Plaintiff told the attacker, “Please step back six feet. I don’t want to get sick.” (Id., at 58:18-19.) Plaintiff said to him, “Back off. I’m calling the cops.” (Id., at 58:23.)

Plaintiff testified that the attacker “appeared to be inebriated.” (Id., at 44:10-11.) Plaintiff stated that she "could smell it.” (Id., at 49:13-14.)

The attacker cursed at Plaintiff, calling her “a fucking bitch.” (Id., at 45:25-46:1.) “[H]e kept saying it over and over again to the point where I was forgetting my own PIN number on my credit card and I had to run it three times. I was getting very nervous.” (Id., at 46:2-5.)

Plaintiff put her finger up and said, “‘Hey, back off. Please don’t touch me.’ And that’s when he attacked me.” (Id., at 45:8-9.)

Plaintiff testified:

“[H]e threw the 18-pack of beer at me …. He threw the two alcoholic beverages that he had. He had an 18-pack of Coors Lite of metal cans. He got it and threw it at my chest. And I was right pinned up against the -- you know how in the aisle you guys have, like, a candy aisle just sell extra? It pushed me into that candy aisle.

The 18-pack impacts on my chest, it hits my knees, and it falls on top of my feet. I'm backing up because there's beer falling all over the place. And then he picks up a bottle of vodka and throws it at me.

…

I got so scared, I went into the -- into the cashier's safety thing with the big glass, and I hid and held it, and I said, "Somebody call the police." I got into the cashier because back then everything had glass -- not glass but, like, plastic dividers. So he kept throwing alcohol beverages at me, beer, and he threw the vodka bottle at me, and it broke my skin and made a bruise.”

(Id. at 46:10-25, 48:10-17; see also DSUMF, Nos. 23-25.)

Plaintiff screamed for help, yelling, “Please, somebody call the cops.” (Plaintiff Depo., at 58:24-25.)

Plaintiff testified that the manager of the store called the police, and the police arrived “very fast,” within “six or seven minutes,” or possibly “ten minutes.” (Id., at 60:12-17; see also DSUMF, Nos. 28-29.) The police “grabbed” the attacker and “handcuffed him.” (Plaintiff Depo., at 60: 4-5; DSUMF, No. 30.)

In her deposition, Plaintiff was asked how much time elapsed between the time that she placed her groceries on the conveyor belt and the “back-and-forth occurred” between Plaintiff and the attacker. (Plaintiff Depo., at 48:20-23.) She stated that she did not know but she estimated that “he was attacking me for four minutes.” (Id., at 49:8-9.) “It seemed like it was for an eternity.” (Id. at 49:9-10.)

Plaintiff asserts that during the incident, the cashier never used the phone next to her to summon assistance. (Plaintiff’s Statement of Additional Material Facts, No. 1.)

In the complaint, Plaintiff asserts three causes of action against Defendant: the First Cause of Action for premises liability; the Second Cause of Action for negligence; and the Fourth Cause of Action for negligent hiring, supervision, or retention.

The First and Second Causes of Action (for premises liability and negligence)

The basic elements of causes 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.)

Pursuant to Civil Code section 1714, subdivision (a), “Everyone is responsible ... for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person ....” This statute establishes the default rule that each person has a duty “to exercise, in his or her activities, reasonable care for the safety of others.” (Brown, supra, at pp. 213-214.)

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.) Although a business 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 defendant may owe an affirmative duty to protect another from the conduct of third parties if he or she has a ‘special relationship’ with the other person. … Courts have found such a special relationship in cases involving the relationship between business proprietors such as shopping centers, restaurants, and bars, and their tenants, patrons, or invitees.” (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.) A business owner owes “a duty to undertake “reasonable steps to secure common areas against foreseeable criminal acts of third parties that [were] likely to occur in the absence of such precautionary measures” and to take such “appropriate action as is reasonable under the circumstances to protect patrons.” (Id., at p. 244.)

“[O]nly when ‘heightened foreseeability’ of third party criminal activity on the premises exists—shown by prior similar incidents or other indications of a reasonably foreseeable risk of violent criminal assaults in that location —does the scope of a business proprietor's special-relationship-based duty include an obligation to provide guards to protect the safety of patrons.” (Id., at p. 240.)

Defendant moves for summary judgment, arguing primarily that Plaintiff cannot establish the essential element of causation. (Mem. at pp. 12-16.) Defendant also argues, in a single sentence, that Defendant did not create the dangerous condition (Mem. at 17:12-13.)

The law on causation is clear. Even when a plaintiff proves breach, the plaintiff cannot recover for negligence absent evidence “that it was more probable than not that, but for the [defendant’s] negligence, the [injury] would not have occurred.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 775. “Proof of causation cannot be based on mere speculation,” and a “mere possibility of such causation is not enough.” (Ibid.; see also Rinehart v. Boys & Girls Club of Chula Vista (2005) 133 Cal.App.4th 419, 435 [“speculative possibility” of causation is not sufficient],)

Where, as here, the plaintiff has been injured in a criminal assault by a third party, plaintiff must show, with “direct or circumstantial evidence,” that “the assailant took advantage of the defendant’s lapse … in the course of committing his attack, and that the omission was a substantial factor in causing the injury.” (Saelzler, supra, 25 Cal.4th at p. 779.) The mere existence of an attack and resulting injury, by themselves, do not prove causation. (Thompson v. Sacramento City Unified School Dist. (2003) 107 Cal.App.4th 1353, 1372.)

The Court will call this matter and hear from counsel on all issues raised by the papers, including, but not limited to, on the following questions.

The Fourth Cause of Action (for negligent hiring, supervision, or retention)

Plaintiff’s third cause of action against Defendant is negligent hiring, supervision, or retention. “California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee.” (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054; accord Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 836.) “Liability … is based upon the reasoning that if an enterprise hires individuals with characteristics which might pose a danger to customers or other employees, the enterprise should bear the loss caused by the wrongdoing of its incompetent or unfit employees.” (Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339; accord Phillips v. TLC Plumbing (2009) 172 Cal.App.4th 1133, 1139.)

The elements of this cause of action are: (1) that defendant hired an employee; (2) that the employee was or became unfit to perform the work for which they were hired; (3) that defendant knew or should have known that the employee was or became unfit and that this unfitness created a particular risk to others; (4) that the employee’s unfitness harmed plaintiffs; and (5) that the defendant’s negligence in hiring, supervising, training, or retaining the employee was a substantial factor in causing plaintiffs’ harm. (See Phillips, supra, 172 Cal.App.4th at p. 1139; Mendoza, supra, 66 Cal.App.4th at p. 1339; Federico v. Superior Court (1997) 59 Cal.App.4th 1207; see also CACI No. 426.)

The Court will call this matter and hear from counsel on all issues raised by the papers, including, but not limited to, on the following questions.

Conclusion

The Court will call this matter.