Judge: Steven A. Ellis, Case: 23STCV02325, Date: 2024-08-02 Tentative Ruling
Case Number: 23STCV02325 Hearing Date: August 2, 2024 Dept: 29
Motion for Summary Judgment, or in the alternative for Summary
Adjudication, filed by Defendant 850-860 South Los Angeles Street, LLC
Tentative Ruling
The Court will call this matter and hear from counsel on all issues,
including, but in no way limited to, the following:
First Cause of Action (Premises Liability)
1. 1. Does
Plaintiff contend that the floor itself (with our without water on it) was so
slippery as to pose an unreasonable risk of harm to visitors?
If so, what evidence in the record supports this
contention? Is the deposition testimony of
Deborah Kadkhoda (at pages 28 and 29) admissible lay opinion testimony on this topic?
What is Defendant’s response? Is the evidence in the record to the contrary
undisputed (that is, is there undisputed evidence in the record that the floor
itself did not pose an unreasonable risk of harm to visitors)?
2. 2. As to the
water spill itself, does Plaintiff contend that this Defendant had actual or
constructive knowledge of the spill with sufficient time to remedy it? The undisputed evidence in the record appears
to show that there was only approximately 5-7 minutes between the spill and
Plaintiff’s fall. (See DSUMF, No. 38.)
If so, what evidence in the record supports Plaintiff’s contention
of actual knowledge?
If so, what evidence in the record supports Plaintiff’s
contention of constructive knowledge?
Second Cause of Action (Product Liability)
3. 3. This
Defendant argues that it cannot be held liable under a product liability theory
because it did not manufacture,
distribute, or sell the products used to maintain or seal the floors at the
Cooper Building. (See Garcia Decl., ¶ 18.)
Does Plaintiff concede this point as to
this Defendant? If not, what is
Plaintiff’s response?
Background
On February
2, 2023, Ramona Saketkhou (“Plaintiff”) filed a complaint against Big Munga Development
No. 2 LLC and Does 1 to 25, asserting causes of action for premises liability
and products liability arising out of a slip and fall on September 30, 2022.
On April
14, 2023, Plaintiff amended the complaint to name 850-860 South Los Angeles
Street, LLC (“850” or “Defendant”) as Doe 1.
On May 18,
2023, 850 filed an answer and a cross-complaint against Trade Showroom, Inc.,
and Roes 1 through 25.
On June
14, 2023, Plaintiff amended the complaint to name Tradeshow Room, Inc. as Doe
2.
On July
13, 2023, Trade Showroom Inc. filed an answer to the cross-complaint.
On August 4,
2023, Plaintiff amended the complaint to name Trade Showroom, Inc as Doe 3.
On March
29, 2024, 850 filed this motion for summary judgment, or in the alternative, for
summary adjudication. Plaintiff filed an opposition on May 31, 2024. On July
25, 2024, 850 filed a reply and objections to Plaintiff’s evidence.
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 nine
objections to the Declaration of Brendan Bourdage, PhD. in support of Plaintiff’s
opposition. 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 OVERRULES all nine
objections. The Court finds that
Dr. Bourdage has appropriate credentials; that the testimony of the expert relates
to a subject that is sufficiently beyond common experience; that the opinion of
the expert would assist the trier of act; that his opinion is based on
information of the type on which an expert may reasonably rely; that his
opinion is based on reasons supported by the information on which the expert
relies; and that his opinion is not speculative (Evid. Code, §§ 801-802; Sargon
Enterprises v. USC (2012) 55 Cal.4th 747, 771-21.). Defendant’s objections go
to the weight to be given to Dr. Bourdage’s expert opinion testimony, not its
admissibility, and the Court does not weigh evidence on a summary judgment
motion.
Discussion
The accident that is the subject of this
lawsuit occurred at approximately 11:30-11:40 am, on September 30, 2022, at 860
South Los Angeles Street in Los Angeles, known as the “Cooper Building” or
“Cooper Center.” (Defendant’s Statement
of Undisputed Material Facts [“DSUMF”], Nos. 1-2; Plaintiff’s Statement of
Additional Material Facts [“PSAMF”], No. 1.)
Defendant owns the Cooper Center.
(PSAMF, No. 16; Garcia Decl., ¶ 2.)
Plaintiff was at the Cooper Center on the
date of the accient to shop for a dress at a sale held on the last Friday of
each month. (DSUMF, No. 2; PSAMF, Nos.
3-4.) That day was a busy day at the
Cooper Center. (DSUMF, No. 3; PSAMF, No.
3.)
While Plaintiff was shopping, there was a
“huge pod of water” in a hallway in the Cooper Center. (DSUMF, No. 4.) Plaintiff slipped and fell on the water in
the hallway. (DSUMF, No. 5; PSAMF, No. 7.) The hallway is not inside any individual
store; it is a common area that customers pass through to enter (and later
exit) the stores in the Cooper Center.
(DSUMF, No. 17.)
Plaintiff has no personal knowledge
regarding how long the water was on the floor of the hallway prior to her
fall. (DSUMF, No. 9.)
A witness, Deborah Kadkhoda, testified
that, prior to Plaintiff’s accident, she saw another customer accidentally
knock over a vase as the customer was leaving Trade Showroom (one of the stores
in the Cooper Center). (DSUMF, Nos. 18-24.) When the vase fell, Ms. Kadkhoda saw that the
water inside the vase ended up on the floor in the hallway outside the store. (DSUMF, No. 25-26; PSAMF, No. 10.) Ms. Kadkhoda saw the water because she saw
the other customer hit the vase, but Ms. Kadkhoda testified that if a person
did not know the water was there, the customer would not have noticed it
because it was hard to see. (DSUMF, No.
27-28.)
Ms. Kadkhoda warned several other customers
about the water. (DSUMF, Nos.
30-31.) Ms. Kadkhoda went inside Trade Showroom
to let an employee know about the water, but by the time Ms. Kadkhoda went to
discuss the water with a Trade Showroom employee, Plaintiff had already slipped
and fell. (DSUMF, No. 36.)
After her fall, Plaintiff screamed and
called for help. (DSUMF, No. 6; PSAMF,
No. 8.) Someone came out of Trade
Showroom and cleaned the water off the floor after the incident. (DSUMF, Nos. 7, 27.)
Ms. Kadkhoda testified that approximately
5-7 minutes passed from the time that the customer knocked over the vase and
spilled the water on the floor to the time that Plaintiff slipped and
fell. (DSUMF, No. 38.) Ms. Kadkhoda did not see any other liquid or
debris in the hallway. (DSUMF, No. 43.)
Plaintiff was wearing leather sandals at
the time of her fall. (PSAMF, No. 5; Defendant’s
Evidence, Exh. B.)
Ms. Kadkhoda testified that she had been to
the Cooper Center many times before Plaintiff’s accident, “more than several
dozen” times. (Defendant’s Evidence,
Exh. C [“Kadkhoda Depo.”], at 11:8-13.)
According to Ms. Kadkhoda, the hallway fall where Plaintiff fell is
slippery and has a glossy bottom.
(PSAMF, Nos. 23-24; Kadkhoda Depo., at 28:14-18, 29:7-21.) According to Ms. Kadkhoda, customers who
(like Plaintiff) were not wearing tennis shoes could slip on the floor. (PSAMF, Nos. 25-26; Kadkhoda Depo., at
29:7-21.)
There was a slope or slant in the floor of
the hallway. (PSAMF, Nos. 18-20.) The flooring is not flat and is uneven in
places. (PSAMF, No. 21.)
According to the Cooper Center’s property
manager, Margot Garcia, Defendant “inspects all areas of the property on a
regular basis, including the common areas/interior hallways through its
security, building engineer, and other vendors.” (Garcia Decl., ¶ 6.) The flooring is inspected daily, “checked
hourly for wet floors and messes, and cleaned immediately whenever any water or
foreign substance is discovered on the floor.”
(Garcia Decl., ¶ 10.) Defendant
does not, however, maintain sweep logs.
(PSAMF, No. 36.)
Ms. Garcia also testified that the interior
hallways of the Cooper Center “get resealed approximately every 5 years” and
that the “last sealing occurred approximately in 2020.” (Garcia Decl., ¶ 12.) Defendant is not aware of any slip and fall
incidents (other than Plaintiff’s) resulting from “an allegedly slippery
condition in the interior hallway of the Cooper Building.” (Garcia Decl., ¶ 16; see also id., ¶
19.)
Defendant purchases the products used to
reseal the floors from Home Depot.
(Garcia Decl., ¶ 18.) Defendant does
not manufacture, distribute, or sell the floor products used to maintain or
seal the floors at the Cooper Building.
(Ibid.)
Defendant’s expert, Dr. Mark Blanchette, performed
a site inspection and, after taking certain measurements and conducting certain
testing, offered an opinion that the floor was slip resistant even when wet. (Blanchette Decl., ¶¶ 6-9.) Plaintiff’s expert, Dr. Brendan Bourdage,
asserts that there are various errors and flaws in Dr. Blanchette’s testing,
methodology, and analysis. (Bourdage
Decl., ¶¶ 11-15.)
In the complaint, Plaintiff asserts two causes
of action against Defendant: (1) premises liability and (2) products
liability. Defendant moves for summary judgment
or, in the alternative, for summary adjudication of each cause of action.
Premises Liability
Plaintiff asserts causes of action for negligence
and premises liability. The basic
elements of a cause of action for premises liability are the same as the
elements of a claim for negligence: (1) the existence of a legal duty; (2) breach of that duty; (3)
causation; and (4) resulting damages. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158-1159; Castellon v. U.S. Bancorp
(2013) 220 Cal.App.4th 994, 998.) The existence and scope of duty are legal questions
for the court.¿¿(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.
(Id. 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.)
In
certain circumstances, “‘[E]vidence that an inspection has not been made within
a particular period of time prior to an accident may warrant an inference that
the defective condition existed long enough so that a person exercising
reasonable care would have discovered it.’” (Id. at p. 1210 [quoting Bridgman,
supra, 53 Cal.2d at p. 447.) “[T]he failure to inspect the premises within
a reasonable time prior to the accident [may] give rise to an inference that
the defective condition lasted long enough to have been discovered and
remedied.” (Id., at p. 1211.)
The
Court will hear from counsel regarding what the allegedly dangerous condition was,
whether Defendant created it and, if not, whether Defendant had actual or
constructive knowledge of the condition with sufficient time to remedy it.
Products Liability
One element of a cause of action for products liability (whether asserted
under a theory of strict liability or negligence) is that the defendant manufactured,
distributed, or sold the product at issue.
(E.g., Soule v. GM Corp. (1994) 8 Cal.4th 548, 560; Chavez v.
Glock, Inc. (2012) 207 Cal.App.4th 1283, 1302-1305; CACI Nos. 1200, 1222.)
The Court will hear from counsel regarding whether
Plaintiff contends that this Defendant manufactured, distributed, or sold the
product at issue and, if so, what evidence in the record supports that contention.
Conclusion
The Court
will hear from counsel.