19-CIV-01897 JULIETTE S. LOMBA VS. MACY’S WEST STORES, INC., ET AL.

JULIETTE S. LOMBA MACY’S WEST STORES, INC.
PHILIP A. SEGAL DAVID ROTH

MOTION OF DEFENDANTS MACY’S WEST STORES, INC. AND DALY CITY SERRAMONTE CENTER LLC (“DEFENDANTS”) FOR SUMMARY JUDGMENT TO THE COMPLAINT OF PLAINTIFF JULIETTE S. LOMBA TENTATIVE RULING:

The Motion of Defendants Macy’s West Stores, Inc. and Daly City Serramonte Center LLC (“Defendants”) for Summary Judgment to the Complaint of Plaintiff Juliette S. Lomba (“Plaintiff”) is DENIED.

Defendants move for summary judgment on the ground that no triable issue of material fact exists as to whether Defendants had notice of a dangerous condition and whether the alleged dangerous condition caused Plaintiff’s fall. As the moving party, Defendants have the initial burden to show that either (1) one or more elements of Plaintiff’s causes of action cannot be established, or (2) that there is a complete defense to those causes of action. A cause of action “cannot be established” if the undisputed facts presented by Defendants prove the contrary of Plaintiff’s allegations as a matter of law. Brantley v. Pisaro (1996) 42 CA4th 1591, 1598. The moving party’s evidence will be strictly construed in determining whether it negates an essential element “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s favor.” Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64. Defendants can also show that an essential element cannot be established by presenting evidence that Plaintiff “does not possess and cannot reasonably obtain, needed evidence.” Aguilar v. Atlantic Richfield Co. (2001) 25 C4th 826, 854.

Defendants have not met their burden. As set forth in the Separate Statement, the only evidence Defendants have provided in support of the disputed facts, UMF Nos. 5, 6, and 7, is excerpts of Plaintiff’s deposition testimony where Plaintiff testified that she does not know what caused her fall or whether she was walking across a mat at the time of her fall. This evidence is insufficient to show that Plaintiff does not possess needed evidence from other sources. Weil & Brown, California Practice Guide: Civil Procedure Before Trial § 10:245:23 (TRG 2019) (“Defendant does not satisfy its burden of proof by producing discovery responses that do not exclude the possibility that plaintiffs may possess or may reasonably obtain evidence sufficient to establish their claim.”).

This evidence is also insufficient to negate any of the essential elements of Plaintiff’s claims as a matter of law. Plaintiff alleges in her complaint that the mat was a dangerous condition because it was not suitable for walkers, and she fell when her walker “got caught” on the mat. Compl. at p. 4. Plaintiff further alleges that Defendants knew or should have known of the dangerous condition and failed to take action to prevent Plaintiff’s injuries. Id. Strictly construing the evidence in Plaintiff’s favor, Plaintiff’s uncertainty as to the cause of her fall and whether she had been walking “across” the mat at the time of her fall does not prove the mat was not a dangerous condition or that Plaintiff’s walker did not in fact get caught on the mat.

This evidence also does not establish Defendants’ lack of notice of the alleged dangerous condition. While it is undisputed that Defendants did not have actual notice (UMF No. 8), Defendants did not introduce any material fact showing lack of constructive knowledge. Defendants rely on Jones v. Awad (2019) 39 Cal.App.5th 1200 and Nelson v. Jenson (1960) 177 Cal.App.2d 270 in support of their argument that Plaintiff cannot prove constructive notice. These cases are distinguishable. Unlike the defendants in Jones and Nelson, Defendants have not provided any evidence regarding the lack of prior incidents or complaints. Moreover, the defendants in Jones and Nelson were private landowners. Where the alleged unsafe condition exists in a store, as is the case here, a plaintiff “may demonstrate the storekeeper had constructive notice of the dangerous condition if they can show that the site had not been inspected within a reasonable period of time[.]” Ortega v. Kmart Corp., 26 Cal. 4th 1200, 1212 (2001). Accordingly, since Defendants have offered no evidence showing that they made any inspections of the store entrance where the alleged incident occurred, they have not met their burden of demonstrating that they did not have constructive notice.

Because Defendants have not met their burden, Plaintiff is not required to produce admissible evidence showing a triable issue of material fact. Aguilar, 25 C4th at 850.

Defendants’ evidentiary objections are ruled on as follows:

Objection nos. 1-5 are SUSTAINED as to Exhibits 1, 2, 3, 4, and 6 based on lack of foundation and authentication.
Objection no. 6 is SUSTAINED based on inadmissible hearsay.