Case Number: BC670808 Hearing Date: September 09, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

james silva,

Plaintiff,

v.

tjx companies, inc., et al.,

Defendants.

Case No.: BC670808

Hearing Date: September 9, 2019

[TENTATIVE] order RE:

motion for summary judgment, or, in the alternative, summary adjudication

BACKGROUND

Plaintiff James Silva (“Plaintiff”) filed this action against Defendants T.J. Maxx of CA, LLC, and TJX Companies, Inc. (“Defendants”). Plaintiff alleges that he sat on a stool for sale at Defendants’ store, which broke apart and impaled him. Defendants move for summary judgment or, in the alternative, summary adjudication of each cause of action. Plaintiff filed a request to dismiss his claims for breach of express warranty, breach of implied warranty, and false representation without prejudice. The Court denies that request, because it is without prejudice and Defendants have moved for summary adjudication on those claims. Instead, the Court grants summary adjudication on those claims. However, the Court denies summary adjudication with respect to Plaintiff’s remaining claims for premises liability, negligence, and strict products liability.

LEGAL STANDARD

“[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law . . . . There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.” (Ibid.) In ruling on the motion, “the court may not weigh the plaintiff’s evidence or inferences against the defendant[’s] as though it were sitting as the trier of fact.” (Id. at 856.) However, the court “must . . . determine what any evidence or inference could show or imply to a reasonable trier of fact.” (Ibid., emphasis original.)

OBJECTIONS

A. Plaintiff’s Objections

1. Plaintiff’s Objection #1 – Sustained.

Plaintiff objects to Defendant’s purchase order for the chair at issue. The objection is sustained on two independent grounds. First, although the declarations of Christina Lee and Jeffrey Leight state that the document is a true and correct copy of the purchase orders, neither declaration contains sufficient foundation to authenticate the document (i.e., the declarations lack facts explaining how the declarant knows it is a true and correct copy). Second, and more important, the document is hearsay and the declarations lack sufficient facts to establish an exception (e.g., a business record). Although the document is not attached to the declaration of Christina Lee, the Court would sustain the objection even without this deficiency for the reasons stated. Therefore, Plaintiff’s objection is sustained.

2. Plaintiff’s Objection #2 – Sustained.

Plaintiff objects to Christina Lee’s declaration, specifically her statement that Defendants purchased the chair from Grand Classics, Inc., citing a copy of the purchase order. The Court sustains the objection. As an initial matter, Defendants did not attach the purchase order to the declaration. Moreover, the Court sustains the objection to the purchase order for the reasons stated. Regardless, Ms. Lee testified in her deposition that she had no personal knowledge about this issue. Therefore, Plaintiff’s objection is sustained.

3. Plaintiff’s Objection #3 – Sustained.

Plaintiff objects to Christina Lee’s declaration, specifically her statement that Defendants did not design or manufacture the chair at issue. Ms. Lee testified in her deposition that she had no personal knowledge about this issue. Therefore, Plaintiff’s objection is sustained.

4. Plaintiff’s Objection #4 – Overruled

Plaintiff objects to Christina Lee’s declaration, specifically her statement that it is Defendants’ custom and practice to inspect merchandise before displaying it at their stores. The Court overrules Plaintiff’s objection because Ms. Lee has sufficient foundation to testify about Defendants’ customs and practices.

5. Plaintiff’s Objection #5 – Overruled

Plaintiff objects to Christina Lee’s declaration, specifically her statement that it is Defendants’ custom and practice not to display merchandise with severe defects. The Court overrules Plaintiff’s objection because Ms. Lee has sufficient foundation to testify about Defendants’ customs and practices.

6. Plaintiff’s Objection #6 – Overruled

Plaintiff objects to Christina Lee’s declaration, specifically her statement that a barstool with a defect like the one at issue would not be deemed a condition likely to result in physical harm and therefore would be displayed for sale. The Court overrules Plaintiff’s objection because Ms. Lee has sufficient foundation to testify about Defendants’ customs and practices.

7. Plaintiff’s Objection #7 – Overruled.

Plaintiff objects to Christina Lee’s declaration, specifically her statement that merchandise with a minor defect would be displayed for sale. The Court overrules Plaintiff’s objection because Ms. Lee has sufficient foundation to testify about Defendants’ customs and practices.

8. Plaintiff’s Objection #8 – Overruled.

B. Defendants’ Objections

1. Defendants’ Objection #1

Defendants object to the entirety of Brad Avrit’s declaration. The Court will rule on the relevant parts of the declaration.

2. Defendants’ Objections #2 & #3 – Overruled.

Defendants object to Brad Avrit’s opinion that the chair had a defect and that a reasonable inspection would have revealed the defect. These opinions fall within Mr. Avrit’s area of expertise, and they are not based on impermissible hearsay. Mr. Avrit’s decision to render these opinions without inspecting the chair goes to weight not admissibility. In sum, it falls within the province of the trier of fact to evaluate Mr. Avrit’s opinions. Therefore, the objections are overruled.

3. Defendants’ Objections #3 through #13

The Court did not rely on any of these portions of Mr. Avrit’s declaration. Therefore, the Court need not rule on these objections. (Code Civ. Proc. § 437c(q).)

4. Defendants’ Objection #14

Defendants object to the declaration of Sarah Kim in its entirety. The Court will rule on the relevant parts of the declaration.

5. Defendants’ Objection #15 – Overruled.

Defendants object to the portion of Sarah Kim’s declaration authenticating the deposition of Defendants’ Person Most Qualified, Christina Lee, based on lack of personal knowledge. The objection is overruled, as Ms. Kim has personal knowledge to authenticate the deposition transcript. Moreover, there appears to be no true dispute as to the authenticity of the deposition transcript because Defendants rely on the same deposition transcript in moving for summary judgment.

6. Defendants’ Objections #16 through #22

The Court did not rely on any of these portions of Ms. Kim’s declaration or the accompanying exhibits. Therefore, the Court need not rule on these objections. (Code Civ. Proc. § 437c(q).)

7. Defendants’ Objection #23

Defendants object to the declaration of Plaintiff in its entirety. The Court will rule on the relevant parts of the declaration.

8. Defendants’ Objections #24 through #29

The Court did not rely on any of these portions of Plaintiff’s declaration or the accompanying exhibits. Therefore, the Court need not rule on these objections. (Code Civ. Proc. § 437c(q).)

9. Defendants’ Objections #30 through #34

Defendants object to certain exhibits attached to the declaration of Sarah Kim. The Court did not rely on any of these exhibits, so the Court need not rule on these objections. (Code Civ. Proc. § 437c(q).)

DISCUSSION

A. Claims for Negligence and Premises Liability

To state a claim for negligence, Plaintiff must show that Defendant had a duty to Plaintiff, that Defendant breached that duty, and that the breach caused damages to Plaintiff. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) To state a claim for premises liability, Plaintiff must demonstrate that Defendant failed to exercise ordinary care in its management of the premises. (Ibid.)

Defendants proffer the declaration of Christina Lee (“Lee”), the Operations Manager at the store at issue. Ms. Lee discusses Defendants’ customs and practices, specifically:

“When purchasing merchandise from manufactures and department stores, it is TJ Maxx’s custom and practice to conduct a thorough inspection of the product to ensure its safety and reliability prior to displaying it on store grounds for sale to the general public. In the case of a barstool such as the one involved in plaintiff’s incident, the inspection consists of actually sitting on the chair to ensure it is fit for its intended purpose.” (Declaration of Christina Lee, ¶ 8.)

“It is also custom and practice that if, upon inspection, TJ Maxx discovers a severe defect in the merchandise that would clearly and unquestionably result in physical injury to others, such merchandise shall not be made accessible to the general public.” (Id., ¶ 9.)

“In light of TJ Maxx’s custom and practice, a barstool such as the subject chair at issue in this lawsuit with a seat that could no longer be raised and lowered due to an issue with the chair’s hydraulic system, with no other apparent defects, would not be deemed a condition likely to result in any type of physical harm to one who sat on it. This type of malfunction would be considered a trivial defect unlikely to cause harm to anyone else. If the chair had displayed any chips or cracks upon inspection, including on the seat of the chair, it would not have been displayed for sale to the general public.” (Id., ¶ 10.)

“When merchandise contains a minor defect similar to that in the subject chair, it is custom and practice for TJ Maxx to display the item on store grounds for sale at a discounted price and marked ‘As Is.’” (Id., ¶ 11.)

This evidence is not sufficient to satisfy Defendants’ burden because she only discusses Defendants’ customs and practices in general and provides no basis to find that these customs and practices were employed with respect to the specific chair at issue. In other words, Ms. Lee has no personal knowledge that Defendants inspected the chair at issue. Tellingly, Defendants proffer no declaration from Randy Ramirez, the backroom associate at the store who assembled the chair at issue stating that he inspected the chair at issue or, at a minimum, that he consistently followed the procedures described by Ms. Lee without exception. (Plaintiff’s Evidence in Support of Opposition, Exh. #1, at pp. 42:5-43:13.) Indeed, Ms. Lee admitted that she does not whether Mr. Ramirez actually inspected the chair or how he did so. (Id., Exh. #1, at pp. 40:16-41:12, 43:25-45:12, 50:22-50:25, 64:17-65:2, 89:16-18.) Therefore, Defendants have failed to satisfy their prima facie burden, so the Court denies summary adjudication of Plaintiff’s claims for negligence and premises liability.

In the alternative, even if Defendants satisfied their prima facie burden, Plaintiff proffers sufficient evidence to create a triable issue. Plaintiff proffers a declaration from Brad Avrit, an engineer, stating that “[a] structurally sound chair would not collapse from forces exerted by one person sitting in a reasonable manner.” (Declaration of Brad P. Avrit, ¶ 6.) Avrit opines because Defendants assembled the chair, they created the unsafe condition, because “[a] reasonable inspection would have identified the hazard or that the chair was likely not assembled properly.” (Id., ¶ 7.) Even if Defendants proffered sufficient evidence that the chair was properly inspected, the declaration of Brad Avrit creates a triable issue on this point.

B. Claim for Products Liability

Defendants argue that they cannot be liable for strict products liability because Plaintiff did not actually purchase the barstool. This argument is unpersuasive. “Regardless of the theory which liability is predicated upon, whether negligence, breach of warranty, strict liability in tort, or other grounds, it is obvious that to hold a producer, manufacturer, or seller liable for injury caused by a particular product, there must first be proof that the defendant produced, manufactured, sold, or was in some way responsible for the product.” (Garcia v. Joseph Vince Co. (1978) 84 Cal.App.3d 868, 874, internal quotations and citations omitted.) Here, while Plaintiff did not buy the barstool at issue from Defendants, it is undisputed that Defendants offered the product for sale in their store and that Plaintiff was a prospective customer. These facts are sufficient to defeat summary adjudication on the strict products liability claim.

CONCLUSION AND ORDER

Defendants’ motion for summary judgment, or, in the alternative, summary adjudication, is granted in part and denied in part. The Court grants summary adjudication with respect to Plaintiff’s claims for breach of express warranty, breach of implied warranty, and false representation. The Court denies summary adjudication with respect to Plaintiff’s claims for premises liability, negligence, and strict products liability. Defendants shall provide notice and file proof of such with the Court.

DATED: September 9, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court