Case Name: Paris Edgerton v. Seven Hills Properties, LLC, et al.
Case No.: 18CV324556

This is a slip and fall premises liability case arising from an injury suffered by Plaintiff Paris Edgerton (“Plaintiff”) on March 25, 2016. The original and still operative Complaint in this matter is a form complaint filed March 8, 2018. The Complaint states a single cause of action for Premises Liability against Defendant Seven Hills Properties LLC and Does 1-10. The only narrative portion of the Complaint (on the premises liability attachment) states that on “March 25, 2016,” Plaintiff was injured by a “slip and fall at 875 Cinnabar St., San Jose, CA 95126.” On the premises liability attachment the boxes are checked for “Count One-Negligence,” alleged against Seven Hills Properties, LLC and Does 1 to 5, and “Count Two—Willful Failure to Warn,” alleged against Seven Hills Properties, LLC and Does 6 to 10. Plaintiff’s specific injury is not described in the Complaint. Moving Defendant Cinnabar Commons II, LP (“Cinnabar”), the owner of the property, was added as a substitute for “Doe 1” via a one page Doe Amendment on August 7, 2019. This means only “Count One—Negligence” of the premises liability claim is alleged against Cinnabar and the Complaint cannot be reasonably construed as alleging a failure to warn against Cinnabar. Neither the Complaint nor the amendment state any specific allegations against Cinnabar.

Cinnabar now moves for summary judgment/adjudication of the Complaint’s sole cause of action for premises liability, arguing that Plaintiff has no evidence to support the claim as alleged against it (specifically the causation element) and cannot reasonably obtain such evidence.

I. Premises Liability Generally

“Broadly speaking, premises liability alleges a defendant property owner allowed a dangerous condition on its property or failed to take reasonable steps to secure its property against criminal acts by third parties.” (Delgado v. American Multi-Cinema, Inc. (1999) 72 Cal.App.4th 1403, 1406.) “Premises liability is a form of negligence … and is described as follows: 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. See also CACI 1001 [stating in pertinent part that: “A person who [owns/leases/occupies/controls] property is negligent if he or she fails to use reasonable care to keep the property in a reasonably safe condition. A person who [owns/leases/occupies/controls] property must use reasonable care to discover any unsafe conditions and to repair, replace, or give adequate warning of anything that could be reasonably expected to harm others.”]) There is also a notice requirement: “An owner is liable for harm caused by a dangerous condition, of which the owner had actual or constructive knowledge. An injured plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it, but failed to take reasonable steps to do so.” (Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403, 431, citations omitted.)

“An owner of real property is ‘not the insurer of [a] visitor’s personal safety . . .’ However, an owner is responsible ‘for an injury occasioned to another by [the owner’s] want of ordinary care or skill in the management of his or her property . . .’ Accordingly, landowners are required ‘to maintain land in their possession and control in a reasonably safe condition,’ and to use due care to eliminate dangerous conditions on their property.” (Taylor v. Trimble (2017) 13 Cal.App.5th 934, 943-944, internal citations and quotations omitted.) “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.” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.)

II. Motion for Summary Judgment

The operative pleadings limit the issues presented for summary judgment or adjudication, and a motion for summary judgment/adjudication cannot be granted or denied based on issues not raised by the pleadings. (See Government Employees Ins. Co. v. Sup. Ct. (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (2008) 163 Cal.App.4th 1242, 1258; Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal.App.4th 60, 73 [“the pleadings determine the scope of relevant issues on a summary judgment motion.”].) The form Complaint here does not allege any failure to warn against “Doe 1” (whom Defendant Cinnabar was substituted for) and also cannot be reasonably construed as alleging “negligence per se,” an issue Plaintiff brings up in her opposition.

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty. (See CCP §437c(f)(1); McClasky v. California State Auto. Ass’n (2010) 189 Cal.App.4th 947, 975 [“If a cause of action is not shown to be barred in its entirety, no order for summary judgment—or adjudication—can be entered.”]; Palm Spring Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 288.) Summary adjudication of general “issues” or of facts is not permitted. (See Raghavan v. The Boeing Company (2005) 133 Cal.App.4th 1120, 1136.)

Cinnabar’s motion here is considered one for summary judgment only and the Court declines to rule on Cinnabar’s request for summary adjudication in the alternative of “Issue 1” (that Plaintiff “does not possess and cannot reasonably obtain evidence supporting a cause of action for Premises Liability”). Cinnabar’s “Issue 1” is not an “issue of duty” that can be summarily adjudicated under CCP §437c(f)(1). It is also as a practical matter duplicative of Cinnabar’s argument for summary judgment of the only claim alleged against it and therefore redundant.

On a motion for summary judgment or adjudication the moving party’s declarations and evidence will be strictly construed in determining whether they negate or disprove an essential element of a plaintiff’s claim “in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (or opposing party’s) favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64, parentheses added.) While the same standards of admissibility govern both, the opposition declarations are liberally construed while the moving party’s evidence is strictly scrutinized. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 768.) The evidence must be liberally construed in support of the opposing party, resolving any doubts in favor of that party. (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1037.) The moving party may generally not rely on additional evidence submitted with its reply papers. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-38 [“The general rule of motion practice . . . is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions . . .”]; see also Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.)

The opposing party may be bound by admissions made in deposition testimony or discovery responses. (See Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087 [“Where a declaration submitted in opposition to a motion for summary judgment clearly contradicts the declarant’s earlier deposition testimony or discovery responses, the trial court may fairly disregard the declaration and ‘conclude there is no substantial evidence of the existence of a triable issue of fact.’”]) An opposing party will sometimes rely on circumstantial evidence and/or inferences arising from declarations or other evidence. To defeat summary judgment such inferences must be reasonable and cannot be based on speculation or surmise. (McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App.4th 1510, 1530 [“a material triable controversy is not established unless the inference is reasonable.”]) Moreover, the inference a plaintiff attempts to rely on must satisfy the “more likely than not” evidentiary standard plaintiff will bear at trial. (Leslie G. v. Perry & Assocs. (1996) 43 Cal.App.4th 472, 487.)

Generally on a defendant’s motion for summary judgment: “Summary judgment is properly granted when no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant moving for summary judgment bears the initial burden of showing that a cause of action has no merit by showing that one or more of its elements cannot be established or that there is a complete defense. 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 that cause of action or a defense thereto.’ ‘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.’” (Madden v. Summit View, Inc. (2008) 165 Cal.App.4th 1267, 1272 [internal citations omitted].)

Here, Cinnabar’s motion for summary judgment is DENIED for failure to meet its initial burden.

In order to obtain summary judgment on the basis that an essential element of a plaintiff’s claim (here causation) cannot be established a moving defendant must support such a motion with discovery admissions or other admissible evidence following extensive discovery showing that “plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar, supra, at p. 854-855.) It is not enough for a moving defendant to show merely that a plaintiff currently “has no evidence” on a key element of plaintiff’s claim. The moving defendant must also produce evidence showing plaintiff cannot reasonably obtain evidence to support that claim. (See Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891; Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 808.) A party moving for summary judgment does not satisfy its burden of proof by producing discovery responses that do not exclude the possibility that opposing parties may possesses or may reasonably obtain evidence sufficient to establish their claim. (See Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, 80-81; Gulf Ins. Co. v. Berger, Kahn, Shaffton, Moss, Figler, Simon & Gladstone (2000) 79 Cal.App.4th 114, 134-136; Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1441-1442 [“A motion for summary judgment is not a mechanism for rewarding limited discovery; it is a mechanism allowing the early disposition of cases where there is no reason to believe that a party will be able to prove its case.”])

While Cinnabar has arguably established that Plaintiff currently has no evidence to support her claim, as she is bound by her Complaint and her deposition testimony on summary judgment, it has not met its burden to establish that Plaintiff “cannot reasonably obtain” such evidence. Form interrogatory responses dealing only with Plaintiff’s knowledge of witnesses are not comprehensive enough to establish that Plaintiff cannot reasonably obtain any evidence of causation. Plaintiff’s deposition testimony that she does not recollect how or why she fell on the walkway on Defendant’s property also does not clearly establish that she cannot reasonably obtain any evidence to support her claim.

The Court notes that Cinnabart has submitted evidentiary objections to the declaration of Plaintiff’s retained expert, Kimberley Hawthorne. California Rules of Court, rule 3.1354 requires two documents to be submitted when evidentiary objections are made: the objections and a separate proposed order on the objections, both of which must be in one of the two approved formats set forth in the rule. The Court declines to rule on Cinnabar’s objections as they do not comply with Rule 3.1354. (See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary objections presented in proper format]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal.App.4th 1 [trial court not required to rule on objections that do not comply with Rule 3.1354 and not required to give objecting party a second chance at filing properly formatted papers].) Objections that are not ruled on are preserved for appellate review. (See CCP § 437c(q).)

III. Conclusion

Cinnabar’s motion for summary judgment is DENIED.