Judge Steven A. Ellis, Case Number: 22STCV27025, Date: 2024-10-30 Tentative Ruling

Judge: Steven A. Ellis, Case: 22STCV27025, Date: 2024-10-30 Tentative Ruling

Case Number: 22STCV27025 Hearing Date: October 30, 2024 Dept: 29

Smith v. Flynt Management Group
22STCV27025
Defendant’s motion for summary judgment

Tentative Ruling

The motion is denied.

The Court also advises counsel that it has not reviewed Exhibit D, the video presented to the Court as a CD. For security reasons, the Court will not insert a externally sourced device into the Court’s computer system. If Exhibit D is material, and if Defendant wishes to include Exhibit D in the record of the evidence considered by the Court, the Court will discuss with counsel alternative ways for the Court to view the video.

Background

On August 19, 2022, Cynthia Smith (“Plaintiff”) filed a complaint against Flynt Management Group, LLC dba Larry Flynt’s Lucky Lady Casino (“Defendant”) and Does 1 through 50, asserting cause of action for general negligence and premises liability arising out of an incident in which Plaintiff alleges that she fell and was injured while attempting to sit in a chair with wheels on May 1, 2022.

On October 24, 2022, Defendant filed an answer.

On April 3, 2024, Plaintiff amended the complaint to name Casino Furnishings, LLC as Doe 1.

On November 3, 2023, Defendant filed this motion for summary judgment. Plaintiff filed her opposition on October 16, 2024. Defendant filed a reply on October 24, 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.)

Objections to Evidence

Each party objects to some of the evidence submitted by the other. 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 asserts five objections to Defendant’s evidence. The Court SUSTAINS Objection No. 5 to the unverified, rough transcript of the deposition of Louis Granata. The remaining objections are OVERRULED.

Defendant asserts fourteen objections to Plaintiff’s evidence. The objections are OVERRULED. Of particular significance, Objections Nos. 4 and 5 are overruled, as an expert is entitled to rely on hearsay in formulating his opinion; the People v. Sanchez case addresses what testimony the expert can provide regarding the bases for his opinion, not what materials an expert can rely on in forming his opinion.

Discussion

Plaintiff was a guest and customer at Defendant’s Lucky Lady Casino (“Casino”) at the time of the incident. (Defendant’s Statement of Undisputed Material Facts [“DSUMF”], No. 1; Complaint, unnumbered pp. 3-4.) Plaintiff arrived at the Casino at approximately 4 pm on April 30, 2022. (DSUMF, No. 2.) After midnight, at approximately 1 am on May 1, 2022, Plaintiff alleges that she attempted to sit in a wheeled chair, the chair rolled away, and Plaintiff fell to the ground, sustaining injuries. (DSUMF, Nos. 1-4.)

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, Defendant moves for summary judgment on one ground: that there was no dangerous condition, or at most, a non-actionable trivial defect.

To support that the rolling chair was not a dangerous condition, Defendant provides the declaration of Louis Granata and the deposition of Plaintiff. (Defendant also cites the deposition of Louis Granata, as to which an objection has been sustained, and a video of the incident which, as stated above, the Court has not been able to view.)

Louis Granata, director of facilities for Defendant’s Casino states that he reviewed the Casino’s records in relation to malfunctioning chairs and did not find any reports of a chairs malfunctioning prior to Plaintiff’s incident. (Granata Decl., ¶ 6.) Further, there are not records of other patrons of the Casino sustaining injuries from the use of poker table chairs. (Id., ¶ 7.)

Plaintiff states that she has been to the Casino roughly 60 times prior to the incident and had never experienced (Exh. B, Smith Deposition, 59:21-24, 62:9-16.) Plaintiff further does not know what caused her to fall out of the chair or if there was a problem with the flooring. (Id., 62:21-25, 63:1-8.)

Defendant also relies on several cases from Federal and other state courts that state that having rolling chairs present is not, in itself, a dangerous condition.

In opposition, Plaintiff relies principally on the declaration of her expert witness, Enrique Rivera, CXLT. Mr. Rivera states that he has reviewed a video of the incident and in that video it appears that the chair at issue had twin hard plastic wheels. (Rivera Decl., ¶ 9.) At least one company selling chairs, called Caster City, states on its website that when chairs are used on a carpeted floor and the user may weigh more than 200 pounds, three-inch wheels are recommended. (Ibid.) The failure to provide chairs with such three-inch wheels, Mr. Rivera opines, created a dangerous condition, as it is “foreseeable that patrons of all shapes, sizes, and abilities would be on the Property and utilize the poker … chairs.” (Ibid.)

Defendant criticizes Mr. Rivera’s testimony on a number of grounds, stating (among other things) that there is no evidence that Defendant purchased the chair at issue from Caster City and that statements on one website do not establish a standard of care. But these arguments go to the weight of Mr. Rivera’s testimony, not its admissibility. Even if the Court were to agree 100 percent with Defendant’s criticism of the expert opinion testimony, it is not the role of the Court on summary judgment to weigh evidence or predict likely results at trial. At trial, Defendant may cross-examine Mr. Rivera vigorously on these points, and perhaps Defendant will convince the trier of fact. But on summary judgment, the Court determines that these opinions are admissible, and, viewing the evidence in the light most favorable to Plaintiff, and drawing all reasonable inferences in her favor, Mr. Rivera’s opinion creates a triable issue of material fact as to whether the chairs in the Casino were dangerous. And that is the only issue on which Defendant seeks summary judgment.

Finally, the Court notes that Defendant argues in reply that there is no evidence in the record that the assertedly dangerous condition caused or was a substantial factor in causing Plaintiff’s injury, as there is no evidence that she (combined with the backpack that she was carrying at the time of the incident) weighed more than 200 pounds. But that is an argument about causation, not the existence of a dangerous condition, and was not raised in the moving papers. A party opposing a motion for summary judgment need not show that there are triable issues as to elements of a cause of action not challenged in the moving papers, and a party seeking summary judgment cannot raise entirely new arguments in a reply brief.

In sum, the Court finds, on this record, that there are triable issues as to whether the chair involved in the incident posed an unreasonable risk of foreseeable harm to guests of a certain size and therefore was a dangerous condition. The motion for summary judgment is denied.

The Court need not reach, and does not reach, the other arguments raised in Plaintiff’s opposition.

Conclusion

The Court DENIES the motion for summary judgment of Defendant Flynt Management Group, LLC dba Larry Flynt’s Lucky Lady Casino.

Moving Party to give notice.