Judge: William A. Crowfoot, Case: 20STCV12860, Date: 2022-08-02 Tentative Ruling

Case Number: 20STCV12860    Hearing Date: August 2, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

1. INTRODUCTION

On April 2, 2020, plaintiff Konstantina Mallios (“Plaintiff”) filed this action against defendant Bristol Farms (“Defendant”).  Plaintiff alleges Defendant “negligently, carelessly, and recklessly inspected, repaired, maintained, prepared, modified, and serviced the automatic sliding doors of [its store] and allowing [sic] the automatic sliding door to close on [her].”  (Compl., ¶ 6.)  She alleges she was injured on November 4, 2018, when the automatic sliding doors slammed on her foot.  (Compl., ¶ 8.) 

On April 4, 2022, Defendant filed this motion for summary judgment.  Defendant argues Plaintiff cannot establish that: (1) it had actual or constructive notice of the alleged dangerous condition, (2) it failed to exercise reasonable care, or (3) its conduct caused her injuries. 

A separate tentative addresses Plaintiff’s counsel’s motion to be relieved, which is scheduled to be heard on the same date.

1. LEGAL STANDARD

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.”  (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown 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).)  A moving defendant need not conclusively negate an element of plaintiff’s cause of action.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at p. 855.)

“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).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

1. EVIDENTIARY OBJECTIONS

Plaintiff did not submit any evidentiary objections for the Court.  As Defendant did not meet its moving burden, the Court need not rule on Defendant’s objections to Plaintiff’s evidence.  (Code Civ. Proc., § 437c, subd. (q).) 

1. DISCUSSION

   The elements of a premises liability and negligence cause of action are the same: duty, breach, causation and damages.  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)  “The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.  A failure to fulfill this duty is negligence.”  (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)  While an owner of premises is not an insurer of the safety of its patrons, the owner still owes 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, and the care required is commensurate with the risks involved.”  (Ibid.) 

   To prevail on a premises liability claim, the plaintiff has the burden to prove the owner had actual or constructive notice of the defect in sufficient time to correct it.  (Louie v. Hagstrom’s Food Stores (1947) 81 Cal.App.2d 601, 606.)  “There must be some evidence . . .  to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.”  (Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, 829.)  The plaintiff has the burden because “shifting the burden to defendant would, contrary to existing negligence law, permit an inference of negligence to be drawn against the owner based solely on the fact that the fall or accident occurred.”  (Ortega, supra, 26 Cal.4th at p. 1206.)

   The plaintiff need not show actual knowledge where evidence suggests the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence, which may be shown by circumstantial evidence.  (Ibid.)  A plaintiff may prove a dangerous condition existed for an unreasonable time with circumstantial evidence that an inspection had not been made within a particular period of time prior to the accident, warranting the inference that the defective condition existed long enough that a person exercising reasonable care would have discovered it.  (Id. at p. 1210.)

1. Shifting Burden Based on Plaintiff’s Discovery Responses

Defendant first argues that Plaintiff’s factually devoid discovery responses shifts the burden to Plaintiff to show that Defendant had notice of the alleged dangerous condition.  (See Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590-593.)  Defendant cites to Plaintiff’s responses to Special Interrogatory Nos. 15 and 19, in which Defendant asks Plaintiff to state all facts supporting her contention that it had actual or constructive notice of the alleged dangerous condition.  (Def.’s Ex. B.)  In response to Special Interrogatory No. 15, along with her objections, Plaintiff stated: “Discovery and investigation into this matter are on going [sic].  Plaintiff has not had the opportunity to take depositions and written discovery is on going [sic].  Discovery and investigation may provide additional information responsive to this request and Plaintiff reserves the right to amend this response.  An employee told Plaintiff after the incident that the door was slow to respond.”  (Def.’s Ex. B, p. 9.)  Plaintiff repeated the same in response to Special Interrogatory No. 19 and added: “Defendant is in possession of the security footage.  Discovery is on going and Defendant may be in possession of responsive documents including installation records, inspection and maintenance records, work orders, and security footage which establish constructive notice.”  (Def.’s Ex. B, p. 11.) 

Defendant claims that Plaintiff has no facts because the statement made by the employee is hearsay.  Defendant also emphasizes Plaintiff could not even meaningfully describe the appearance of the employees she interacted with that day.  Plaintiff testified that the two employees who came to help her were a “checker” and a “bagger”; they were both Caucasian men between 30 to 50 years old but she did not remember their hair color, what they were wearing, or if they had facial hair.  (Ex. C, 64:16-66:10.)  But the statement of the employee is not being used by Plaintiff to prove the truth of the matter, i.e., that the sensors were slow to respond.  It is being offered to show that Defendant’s employee was aware that the doors were not functioning as normal. 

Further, the fact that Plaintiff could not identify any prior incidents or complaints made to Defendant about the sliding doors is not sufficient to shift the burden to Plaintiff because Plaintiff is not expected to have personal knowledge of these events. 

1. Notice and Reasonable Care

   Next, Defendant argues that it did not have actual or constructive notice of any problems with the automatic sliding doors.  As Defendant also argues the same points in support of its assertion that it exercised reasonable care in maintaining the premises, the Court addresses both sections of Defendant’s motion at the same time.

   Defendant points to invoices for maintenance and repair services and argues that there are no indications that any of the repairs were related to doors closing on customers.  (Ellis Decl., ¶¶ 4-6.)  Defendant also describes how Serena Ellis, the manager of services, performed a store inspection, including walking in and out of the Store approximately 1 hour prior to the alleged incident.  Ellis declares that the subject doors were working properly and presented no indication of a malfunction when she walked through them prior to Plaintiff’s incident.  (Ellis Decl., ¶¶ 9-10.)  She also states she observed numerous customers enter and exit the Store through the doors without problems and received no report that there were any problems.  (Ellis Decl., ¶ 13.)  She also confirms that after the Incident, she walked through the doors again and experienced no problems, and never saw the doors close on any customer.  (Ellis Decl., ¶ 13.) 

   Defendant argues that, based on these inspections and lack of any record of a malfunctioning door, Plaintiff cannot raise a triable issue of fact on the issue of notice.  The Court disagrees that Defendant has shown that no triable issue of fact exists simply because an inspection was performed 1 hour before Plaintiff’s incident.  “The exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, because, obviously, it varies according to the circumstances.”  (Louie, supra, 81 Cal.App.2d at p. 608.)  “It remains a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care.”  (Ortega, supra, 26 Cal.4th at p. 1213.)  Further, it is a question of fact as to whether Defendant exercised reasonable care and whether its inspection system was sufficient. 

2. Causation

Last, Defendant unpersuasively argues that Plaintiff cannot establish the element of “causation.”  Defendant attempts to shift the burden to Plaintiff by again using her discovery responses.  However, Defendant selected Plaintiff’s response to the interrogatory asking Plaintiff to state all facts supporting her contention that Defendant created the dangerous condition.  Whether Defendant created the dangerous condition is separate from whether Defendant caused Plaintiff’s injuries.  `

VI.     CONCLUSION

          In light of the foregoing, the Motion for summary judgment is DENIED.

Moving party to give notice. 

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.