Case Name:   Brown-Carr v. Public Storage, et al.

Case No.:       1-13-CV-247316

 

On May 27, 2011, plaintiff Terry Brown-Carr’s (“Plaintiff”) mother entered into a contract with defendant Public Storage (“Defendant”) to lease Unit B142 at a storage facility located at 3911 Snell Avenue in San Jose.[1]  (Defendant’s Separate Statement of Undisputed Material Facts (“DSUF”), ¶ 1.)  The contract contained indemnity and limitation of liability provisions related to the use of Defendant’s premises.  (See DSUF, ¶¶ 16 and 17.)  On January 23, 2012, Plaintiff entered the facility and slipped and fell on what she alleges was a wet, uneven, and slippery surface.  (See First Amended Complaint, CAUSE OF ACTION—Premises Liability, ¶ Prem. L-1; Plaintiff’s Evidence in Opposition to Defendant’s Motion (“AMF”), ¶ 6.)  As a result of the fall, Plaintiff broke her left ankle and required surgery.  (AMF, ¶ 26.)

 

Currently before the Court is Defendant’s motion for summary judgment or, in the alternative, for summary adjudication.  Defendant moves for summary judgment on the grounds that it has negated and Plaintiff cannot establish essential elements of her claims because Defendant did not have actual or constructive notice of a dangerous condition on its property or breach any duty owed to Plaintiff, and because no dangerous conditions existed in the B Building.  (See Stathoulis v. City of Montebello (2008) 164 Cal.App.4th 559, 566 [an initial and essential element of recovery for premises liability is proof that a dangerous condition existed]; Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476 [“In the absence of actual or constructive knowledge of the dangerous condition, the owner is not liable.”)  In the alternative, Defendant moves for summary adjudication based upon the indemnification and limitation of liability clauses in the lease agreement.

 

Defendant’s motion for summary adjudication is DENIED.

 

As urged by Plaintiff, given that the lease to Unit B142 was clearly executed by Plaintiff’s mother and not Plaintiff, it does not apply to Plaintiff’s claims.  (See Decl. of Joe Singletary ISO Motion for Summary Judgment, ¶ 4 [stating the lease was “entered into and between PUBLIC STORAGE and [Plaintiff’s mother] Anna Johnson], Ex. A [reflecting the same]; Bleecher v. Conte (1981) 29 Cal.3d 345, 350 [for a contract to bind either party, both must have assumed some legal obligations].)  Defendant does not address this issue.  In addition, Defendant’s requests that the Court find that it is owed indemnity from Plaintiff’s mother and that Plaintiff is precluded from recovering against it for an amount greater than $5,000 are not appropriate subjects for summary adjudication given that they would not completely dispose of any of Plaintiff’s claims, and the parties have not stipulated to summary adjudication of these issues.  (See Code Civ. Proc., § 437c, subds. (f)(1) and (s)(2).).

 

Defendant’s motion for summary judgment is also DENIED.

 

Plaintiff alleges that she slipped due to issues with the condition of the flooring and lighting in the hallway outside her mother’s storage unit, as well as the presence of water on the floor.

 

Defendant contends that it never received any complaints related to the condition of the flooring or lighting in the hallway, and that Plaintiff herself never complained despite having entered the B Building on several occasions prior to the incident.  (See DSUF, ¶¶ 2, 3, 5, and 10.)  Defendant states that Plaintiff could not even recall if she attempted to turn on the light on the day of her accident (see DSUF, ¶ 9), and the lighting in the B Building was the same from the time Plaintiff’s mother rented the unit as it was at the time of Plaintiff’s alleged fall (DSUF, ¶ 7).  In addition, Defendant contends that its employee, Juanita Hernandez, did a walk-through of the premises, including the hallway of the B Building, on the morning of January 23, 2013, and did not observe any water or other liquid on the ground in the hallway of the B Building (see DSUF, ¶¶ 11 and 12), and that she again did not observe any liquid on the ground when she inspected the area a second time after Plaintiff advised Defendant of her fall (see DSUF, ¶¶ 13 and 14).  Ms. Hernandez also testified that the ground was not uneven and there were no problems with the lighting.[2]  (See DSUF, ¶ 15.)

 

As noted by Plaintiff, Defendant’s statement of undisputed facts is unclear concerning the timing and scope of Ms. Hernandez’s inspections, an issue which was compounded by Defendant’s failure to include her deposition transcript among its moving papers.  However, as demonstrated by the transcript included with Defendant’s reply papers, Ms. Hernandez did testify that she had performed a “lock check” of all the hallways in the B Building prior to the time when Plaintiff made a payment (which must have been before her fall, given that Plaintiff was hospitalized after the fall), and did not see water in the hallways.  (Ex. A to Supplemental Decl. of Lorena Matei, Hernandez Dep. Trans. at 33:3-34:9.)  After Plaintiff called from the hospital to report her fall, Ms. Hernandez repeated the “lock check” of the whole building and again did not see any water.  (Id. at 34:19-35:15.)  Based on this testimony, Defendant has adequately demonstrated that there was no water present in the B Building around the time of Plaintiff’s fall.  As to the lighting and flooring, however, Defendant’s statement of undisputed facts merely indicates that Ms. Hernandez testified that the ground was not uneven and there were no problems with the lighting.  (DSUF, ¶ 15.)  The portion of Ms. Hernandez’s deposition transcript cited by Defendant in support of this statement is not included in Defendant’s moving or reply papers.  Given Defendant’s vague paraphrasing of Ms. Hernandez’s testimony and failure to include her actual testimony for the Court’s review, this statement is insufficient to constitute a showing that the lighting and flooring were not in a dangerous condition.  While Defendant points out that Plaintiff did not recall if she attempted to turn on the light on the day of her accident, her testimony (which, again, was not included with Defendant’s moving papers) in fact indicates that Plaintiff believed she did attempt to turn on the light.  In addition, Joe Singletary’s statement that the lighting in the B Building was the same at the time Plaintiff’s mother rented the unit as it was at the time of Plaintiff’s alleged fall does not indicate what type of condition the lighting was in during this period.  Finally, the fact that Defendant received no complaints about the condition of the flooring or lighting in the hallway is inadequate to show that problems with their condition did not exist in fact.

 

Consequently, Defendant has failed to meet its burden of demonstrating that a dangerous condition did not exist on its premises at the time of Plaintiff’s fall.  (See Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64 [the evidence is viewed in the light most favorable to the opposing plaintiff; the court must “strictly scrutinize defendant’s … evidence, in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor”].)  To the extent Defendant’s motion is based on Plaintiff’s inability to prove this element, Defendant has introduced no evidence on this point and has thus failed to meet its burden on this theory, either.  (See Aguilar v. Atlantic Richfield Co., 25 Cal.4th 826, 855 [defendant may demonstrate that an essential element of plaintiff’s claim cannot be established by “present[ing] evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence-as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing.”)

 

In support of its argument that it did not have actual or constructive knowledge of the conditions Plaintiff alleges, Defendant contends that it never received any complaints related to the condition of the flooring or lighting in the hallway, and that Plaintiff herself never complained despite having entered the B Building on several occasions prior to the incident.  (See DSUF, ¶¶ 2, 3, 5, and 10.)  Defendant also points to the testimony of Ms. Hernandez, discussed above, concerning her inspections of the premises on the morning of the incident in question.

 

As discussed above, while Ms. Hernandez’s testimony is clear that she did not find any water during her inspections of the B Building before and after Plaintiff’s fall, it is unclear what she might have noticed concerning the other conditions complained of by Plaintiff, particularly given that her actual testimony on this subject was not provided by Defendant.  Nevertheless, the fact that Defendant had not received any complaints about the conditions Plaintiff alleges is adequate to make a prima facie showing that Defendant lacked actual knowledge of such conditions.

 

However, “[t]he plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence.”  (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.)  “The owner must inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it.”  (Id. at p. 1207.)  Here, Defendant offers no evidence with its moving papers concerning its policies and practices regarding inspection for defects like those alleged by Plaintiff.  It submits only the testimony of Ms. Hernandez as to the results of a pair of inspections on the day of the incident, which speaks only to Defendant’s knowledge of one of the three defects complained of by Plaintiff.  Defendant’s evidence does not address its knowledge of the condition of the flooring and lighting in the B Building, nor whether Defendant may have known that water tended to accumulate in the entryway on rainy days in general, even if it lacked specific knowledge of the exact puddle that allegedly caused Plaintiff’s fall.  Viewing this evidence in the light most favorable to Plaintiff, Defendant has failed to carry its burden of negating the knowledge element of Plaintiff’s claims or demonstrating that Plaintiff cannot prove this element.  (See Johnson v. American Standard, Inc., supra, 43 Cal.4th at p. 64.)

 

Plaintiff’s objections to evidence are OVERRULED, and Defendant’s objections to evidence are deemed MOOT.

 

The Court will prepare the order.