Judge: William A. Crowfoot, Case: 20STCV22387, Date: 2022-08-25 Tentative Ruling

Case Number: 20STCV22387    Hearing Date: August 25, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         INTRODUCTION

          On June 15, 2021, Plaintiff Stephanie Heredia (“Plaintiff”) initiated this action against defendants Culver City Mall, LLC, Westfield, LLC, Build-A-Bear Workshop, and Melissa Doe, asserting the following causes of action: (1) negligence; and (2) premise liability.

          On August 26, 2020, defendant Culver City Mall, LLC filed its answer to the complaint and its own cross-complaint against Ubuntu Development, Inc., alleging the following causes of action: (1) breach of contract; (2) express indemnity; (3) implied indemnity; (4) equitable indemnity; (5) equitable contribution; and (5) declaratory relief.

          On October 16, 2020, Plaintiff voluntarily dismissed defendant Build-A-Bear Workshop, Inc. without prejudice for this action.

          On December 8, 2020, the Court granted the joint stipulation and order filed by the parties, allowing Travelers Property Casualty Company of America to intervene in this action on behalf of its insured, cross-defendant Ubuntu Development, Inc.

          On November 22, 2021, defendant Culver City Mall, LLC (hereinafter, “Movant”) filed the instant motion for summary judgment on the ground that there is no triable issue of material fact, and, in the alternative, Movant moves for summary adjudication as to both causes of action on the grounds that it lacked actual or constructive notice of any alleged dangerous condition and its act or omission did not cause Plaintiff’s injuries. Plaintiff opposes.

II.      FACTUAL BACKGROUND

As alleged in the complaint, on October 6, 2019, Plaintiff slipped and fell on an unknown substance while on the first floor of the subject premise, located at 6000 Sepulveda Blvd., Culver City, CA 90230, which is owned, operated, and managed by defendants. As a result of incident, Plaintiff sustained various injuries.

III.      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.) 

IV.     EVIDENTIARY OBJECTIONS

          Plaintiff objects to various portions of Movant’s evidence used in support of the instant motion. The Court sustains objection no. 1 and overrules objection nos. 2-10.

          Movant objects to portions of Plaintiff’s evidence used in support of her opposition to the instant motion. The Court overrules objection nos. 1-2, 7-8, 13 and sustains objection nos. 3-6, 9-12, 14-17.

V.        DISCUSSION

Movant moves for summary judgment on the ground there is no triable issue of material fact as to whether Plaintiff can support her claims against it. (See Notice of Motion at pg. 2.)

“The elements of a negligence cause of action are the existence of a legal duty of care, breach of that duty, and proximate cause resulting in injury. The elements of a cause of action for premises liability are the same as those for negligence: 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.)  “‘Liability is particularly appropriate where the landowner has actual knowledge of the danger, e.g., where he has created the condition.’  [Citation.]”  (Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294, 1304.)  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.   Whether Movant Lacked Knowledge of the Alleged Dangerous Condition

Movant first argues that it is entitled to summary judgment because the undisputed evidence shows that it lacked notice of any alleged dangerous condition, even if one existed.

To establish liability for negligence, “[t]here 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; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.)  “The proper test to be applied to the liability of the possessor of land . . . is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others . . .”  (Alpert v. Villa Romano Homeowners Assn. (2000) 81 Cal.App.4th 1320, 1334-1335.) 

Generally. “[w]hether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury, and the cases do not impose exact time limitations. Each accident must be viewed in light of its own unique circumstances.” (Ortega, supra, 26 Cal.4th at 1207.) However, “a landowner cannot be charged with constructive notice without a showing of some overt feature surrounding the dangerous condition, which would notify the landowner of its existence.” (Jones v. Awad (2019) Cal.App.5th 1200, 1209.)

Here, Movant presents the following evidence to support its position that it lacked any knowledge of the alleged dangerous condition. First, at around 1:24 p.m. on October 6, 2019, Plaintiff slipped and fell on a puddle of soda and ice on the ground in the common area between the Build-a-Store and Honeymee kiosks. (UMF Nos. 4-5; Exh. 5 Heredia Depo at pp. 6:11-13, 25:29-9, 28:1-29:21, 30:16-21, 137:3-15, 154:2-10, 159:10-12, 164:18; Exh. 6, Surveillance Footage on October 6, 2019; Exhs. 11, Movant’s Special Interrogatories, Set One served on October 30, 2020, No. 1, 10; Exh. 12, Plaintiff’s Responses to Movant’s Special Interrogatories, Set One served on October 30, 2020, No. 1, 10.) Second, Movant’s contracted janitorial service provider, NJSI, inspected the subject area approximately thirty-nine minutes before the incident. (UMF No. 10; Exh. 3 Hirst Decl. ¶¶ 5-8, 9; Exh. 7, Lighthouse Report for October 6, 2019; Exh. 8, Lighthouse Beacon Map for October 6, 2019.) Third, during the thirty minutes proceeding the incident, approximately 300 patrons are walking by the subject area without any problems. (UMF No. 8; Exh. 2, Dick Declaration ¶¶ 3-8, Exh. 6 at time 12:54:08-13:24:08.) Fourth, at around 1:22:38 p.m., an unknown patron spilled the contends of their drink and attempted to clean it up before leaving. (UMF Nos. 6-7, 13; Exh. 2, Dick Declaration ¶¶ 3-9; Heredia Depo at pp. 63:16-20, 148:18-22, 158:22-164:18, 241:18-25; Exh. 6 at times 13:22:38, 13:23:12-13:24:04.) Fifth, Movant contends that Plaintiff lacks any evidence to show that it had actual notice of any dangerous condition, based on factually devoid discovery responses. (UMF No. 11; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 580-581.)

Considering that the dangerous condition was created only ninety seconds before Plaintiff’s fall occurred and an inspection of the area was previously conducted with in a reasonable period of time prior to the incident, Movant has shown that it did not have actual or constructive notice of the dangerous condition that caused Plaintiff’s fall. (Union Bank, supra, 31 Cal.App.4th at 580-581; Girvetz, supra, 91 Cal.App.2d at 831 [reasoning that evidence showing that, as a matter of law, constructive notice cannot be established where a dangerous condition existed only for “a good minute and a half.”]; see also Oldenburg v. Sears, Roebuck & Co. (1957) 152 Cal.App.2d 733 [reasoning that five minutes was not sufficient time for the defendant to have exercised reasonable care in discovering and removing the dangerous condition].) Thus, the Court finds that Movant has met its burden in showing that there is no triable issue of material fact on the question of whether Movant had notice of the spilled soda between the Build-A-Bear shop and a Honeymee Kiosk. As a result, the burden now turns to Plaintiff to present evidence to show that a triable issue of fact exists.

In opposition, Plaintiff presents the following evidence. First, Plaintiff relies on the written statement of a third-party witness, Kendrick Washington. However, this evidence was properly objected to by Movant on the ground that it did not meet the basic requirements of a declaration. (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th 536, 543 [“A party may not raise a triable issue of fact at summary judgment by relying on evidence that will not be admissible at trial”].) Thus, the Court disregards this evidence. Second, Plaintiff attempts to call into question the admissibility of the surveillance footage and the inspection report from Movant’s contracted janitorial service provider. However, the Court is not persuaded by these attempts because proper foundation has been laid for the surveillance footage and the report. (Motion; Dick Declaration ¶¶ 2-9, Exh. 6; Exh. 5, Heredia Depo at pp. 158:22-164:18; Exh. 2, Hirst Decl. ¶ 7.) Also, the surveillance footage and the inspection report fall under the business records exception. (Evidence Code §§ 1270-1272.)

Third, Plaintiff contends that Movant lacked its own policies and procedures regarding spills and related safety. This is immaterial because it is undisputed that Movant contracts its janitorial duties out to a third-party provider. (UMF No. 3.) Plaintiff fails to cite to any legal authority to show that Movant must supply its own procedures or that the contracted janitorial service failed to abide by its own cleaning and inspection procedures. Thus, Plaintiff is not entitled to presumption of notice as prescribed by Ortega,  and because of the lack of supporting evidence, Plaintiff has failed to meet her burden in showing that there is a triable issue of material fact as to whether Movant had notice of the dangerous condition.

Accordingly, the Court grants Movant’s motion for summary judgment on this ground. In the interest of judicial efficiency, the Court declines to address Movant’s remaining argument as to whether Movant was a substantial factor in causing Plaintiff’s injuries. 

VI.      CONCLUSION

In light of the foregoing, the Motion for Summary Judgment is GRANTED. 

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’s 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.