Judge: Steven A. Ellis, Case: 22STCV20001, Date: 2024-09-04 Tentative Ruling
Case Number: 22STCV20001 Hearing Date: September 4, 2024 Dept: 29
Vargas v. Walmart
22STCV20001
Defendants’ motion for summary judgment
Tentative
The motion of Defendant Sims is denied as
moot, as she has been dismissed.
The motion of Defendant Walmart is denied.
Background
On June 20, 2022, Juan Vargas (“Plaintiff”) filed a
complaint against Walmart Inc. (“Walmart”), Tina Sims (“Sims”), and Does 1
through 60, asserting causes of action for premises liability and negligence arising
out of an incident on June 23, 2020, in which, Plaintiff alleges, a heavy
display item (described in the complaint as a “workbench/work table”) fell on
him.
On July 14, 2022, Walmart and Sims filed an answer.
On August 8, 2023, Walmart and Sims filed a motion for
summary judgment. Plaintiff filed an
opposition on July 1, 2024. Walmart filed a reply, along with objections to
some of Plaintiff’s evidence, on July 24, 2024.
On July 2, 2024, the Court, at the request of Plaintiff,
dismissed Sims as a defendant.
The hearing was initially scheduled for July 26,
2024. The Court, on its own motion,
continued the hearing to September 4.
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
Walmart asserts 7 objections to the declaration
of Plaintiff’s expert witness Mark Burns. 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).)
The Court SUSTAINS Objections Nos. 1 and 5 as
speculation and not based on personal knowledge. The Court OVERRULES the other
objections.
Discussion
As a preliminary matter, Defendant Sims was
dismissed from this action on July 2, 2024. Therefore, the motion for summary
judgment as to her is DENIED AS MOOT.
Turning now to the merits of this motion, this matter
arises from an incident that occurred in the tool department of a Walmart store
on Normandie Avenue in Torrance at approximately 3:25 pm on June 23, 2020. (Defendant’s Statement of Undisputed Material
Facts [“DSUMF”], Nos. 1-2.) Plaintiff, a
customer, reached with his right hand to look at the price of a work bench/tool
table (the “work bench”); the work bench fell and struck Plaintiff, injuring
him, and the next thing that Plaintiff can remember was that he was knocked
out. (DSUMF, Nos. 3, 20; Marquis Decl.,
Exh. 2 [Plaintiff’s Depo.], at 37:11-38:12 & Exh. 3.)
Plaintiff asserts causes of action against
Walmart for premises liability and negligence.
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.)
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.
(Civ. Code, § 1714, subd. (a); Annocki¿v. Peterson Enterprises, LLC¿(2014) 232 Cal.App.4th 32, 37; see also,
e.g., Brooks v. Eugene
Burger Management Corp.
(1989) 215 Cal.App.3d 1611, 1619.) 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
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; see also Ortega, supra, 26 Cal.4th
at p. 1206; Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th
1294, 1304.) “[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.) “The owner must inspect the premises or take other proper
action to ascertain their condition, and if, by the exercise of reasonable
care, the owner would have discovered the condition, he is liable for failing
to correct it.” (Ibid) “A store owner exercises ordinary care by making
reasonable inspections of the portions of the premises open to customers...”
(See id. at p. 1205.) “[A]s to business invitees, the owner should
conduct frequent inspections.” (See id. at p. 1207.)
Here, Walmart argues that it is
entitled to summary judgment because it did not breach any duty to
Plaintiff. Specifically, Walmart argues
that it did not have actual or constructive knowledge of the allegedly
dangerous condition in its store at the time of the incident.
In support of this argument,
Walmart relies primarily on the testimony of David Ballomy, who was at the time
of the accident the department manager for hardware at the Walmart store on
Normandie Avenue in Torrance. (Ballomy
Decl., ¶ 3.) At the time, he worked a
shift from 7 am to 4 pm. (Ibid.)
Mr. Ballomy testified that at
the time of the accident, tool tables on display were “placed as far back on
the shelves as possible and tied down with a zip tie to secure them.” (Id., ¶ 11; see also id., ¶
4.) It was, he testified, his “daily
custom and practice” to “inspect the display shelves to make sure the items on
display, to include tool tables, were secured to the display shelves and could
not be pulled or moved without the use of significant force.” (Id., ¶ 8.) Mr. Bellomy stated that if he observed “a zip
tie missing, I immediately replace[d] the zip tie” and if he observed that a display
item was “not secured to the display shelf, I immediately secure[d] the item by
tying with a zip tie.” (Id., ¶
9.) It was “the custom of management” to
make sure all large items on shelves were secure “every morning.” (Id., ¶ 13; see also Cruz Decl., ¶¶
10-11.)
There is, however, evidence in
the record that these “customs” and “practices,” no matter how well intentioned,
were not always followed, or at least were not followed on the day of this
particular accident at this particular store.
Nonparty witness Conrado Urrutia,
who was a customer at this store at the time of the accident, and had no prior
relationship with any party, testified that he heard a “loud noise,” looked up,
and saw Plaintiff “was falling on his back and his head bounced from hitting
the floor.” (Vaysberg Decl., Exh. 6
[Urrutia Depo. Vol. 1], at 17:3-24.) Mr.
Urrutia took a photograph that “shows the piece of furniture that fell onto”
Plaintiff. (Id., Exh. 7 [Urrutia
Depo. Vol. 2], at 37:1-15.)
At his deposition, Mr. Urrutia
was asked whether he saw or noticed any zip ties or other items to secure the
item. He answered:
“They didn’t put anything.
That’s one of the reasons why I took the picture because of the
negligence at that place.”
(Id., at 38:16-22.) At the time, he stated to a Walmart employee “that
they should be more cautious because the way they had them was not safe.” (Id., at 39:17-23.) “[I]t’s obvious these are heavy pieces of
furniture. … Some of these pieces of furniture were being
held back with some plastic strips and some others were not. It is unsafe.” (Id., at 40:5-10.) “Some of them had it [zip ties securing them]
and some of them did not have them. I
did not notice which ones are the ones that had them.” (Freeland Reply Decl., Exh. A [Urrutia Depo. Vol.
2], at 64:17-24.)
The item that fell on Plaintiff was heavy. Mr. Ballomy testified that it weighs “at
least 30 pounds” and requires “some effort” to move. (Ballomy Decl., ¶¶ 10, 12.) Plaintiff’s expert, Mark Burns, witness
testified that, according to Walmart’s website, the item weighs 113 pounds. (Burns Decl., ¶ 9.) Mr. Burns also testified that an item of this
size and weight was too heavy to be stored safely on the shelf at issue. (Id., ¶¶ 11-12.)
The Court has considered all of the admissible
evidence in the record and the arguments of both sides. On these facts, the Court cannot conclude, as
Walmart argues, that Plaintiff cannot establish the elements of duty and breach
as a matter of law. To the contrary, a
finder of fact could, on this record, draw a reasonable inference that the item
that fell on Plaintiff was not safely secured and displayed, and that Walmart
either created the dangerous condition or had constructive knowledge of
it. There are disputed issues of
material fact that the Court cannot decide as a matter of law.
Accordingly, the motion for summary judgment is
denied.
Conclusion
The motion for summary judgment of Defendant
Sims is denied as moot.
The motion for summary judgment of Defendant
Walmart is denied.
Moving
Party to give notice.