Case Number: BC688733 Hearing Date: September 09, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Spring Street Courthouse, Department 5

klara avyazyan ,

Plaintiff,

v.

macy’s inc.,

Defendant.

Case No.: BC688733

Hearing Date: September 9, 2019

[TENTATIVE] order RE:

defendant’s MOTION FOR SUMMARY JUDGMENT

Background

Plaintiff Klara Avyazyan (“Plaintiff”) filed this action after she fell in a store owned and operated by Defendant Macy’s West Stores, Inc. (“Defendant”). Plaintiff asserts causes of action for negligence and premises liability. Defendant now moves for summary judgment, which Plaintiff opposes. The motion is granted.

UNDISPUTED FACTS

On January 6, 2019, Plaintiff entered Macy’s at the Glendale Galleria. (Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Facts, ¶ 1.) It began to rain while Plaintiff drove to the Glendale Galleria. (Id., ¶ 7.) When Plaintiff arrived, she parked on the second floor of the covered structure, and her car was covered. (Id., ¶ 8.) Plaintiff walked across a bridge that connects the parking structure to the shopping center. (Id., ¶¶ 9-13.) The bridge is uncovered, open, and exposed to the elements. (Id., ¶ 12.) The floor of the bridge was wet and it was raining at the time Plaintiff walked across the bridge to enter the Glendale Galleria. (Id., ¶ 13.) Plaintiff did not have an umbrella with her. (Id., ¶ 14.) When Plaintiff entered the mall, she walked about 30 steps before turning left and walking another 10 steps to enter the Macy’s store. (Id., ¶ 16.) After entering the Macy’s store, Plaintiff slipped on liquid. (Id., ¶¶ 2, 20.) Plaintiff did not see any liquid in the area prior to her fall. (Id., ¶ 21.) Plaintiff did not see any liquid on the floor after she fell but she felt liquid on the back of her pants as she laid on the floor. (Id., ¶ 22.)

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.)

DISCUSSION

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.)

Defendant argues that there was no dangerous condition. Defendant relies on Plaintiff’s responses to the undisputed material facts, in which Plaintiff admits that she did not observe any liquid on the floor prior to, or after, her fall. Defendant also relies on Plaintiff’s deposition testimony, in which Plaintiff admitted that a manager named “Shant” showed her that there was no liquid on the floor where she fell. (Declaration of Ibrahim Muhtaseb, Exh. B., at p. 68:5-11.) This evidence is sufficient to satisfy Defendant’s prima facie burden, shifting the burden to Plaintiff.

Plaintiff admits that she did not see any liquid on the floor before or after her accident. Instead, Plaintiff argues that there was liquid on the floor, evidence by the fact that her pants were wet, having absorbed the liquid. This is insufficient to create a triable issue. Plaintiff cannot raise triable issues based on “no more than mere speculation . . . .” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) Two cases support the Court’s view. In Buehler v. Alpha Beta Co. (1990) 224 Cal.App.3d 729, the Second District affirmed the trial court’s decision to grant summary judgment. In that case, the plaintiff slipped and fell on “an unknown substance” on the floor, but there was no evidence of anything on the floor, and the plaintiff did not know why she fell. In Vaughn v. Montgomery Ward (1950) 95 Cal.App.2d 553, the First District reversed a jury verdict in favor of the plaintiff. In that case, there was no evidence that the floor at issue was slippery, and Plaintiff’s only evidence was that her clothes were soiled with grease afterwards. Both cases are squarely on point. Therefore, the Court grants summary judgment. The Court need not reach the issue whether Defendant had actual or constructive notice of a dangerous condition because there is insufficient evidence that any dangerous condition existed.

CONCLUSION AND ORDER

Defendant’s motion for summary judgment is granted. Defendant shall provide notice and file proof of such with the Court.

DATED: September 9, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court