Case Name: Mario Hidalgo, et al. v. Pacific Gas and Electric Co., et al.
Case No.: 2016-CV-297926

Motion for Summary Judgment, or in the Alternative, Summary Adjudication to the Complaint by Defendant 7-Eleven, Inc.

Factual and Procedural Background

This case arises from a Pacific Gas and Electric Company (“PG&E”) gas meter explosion and three-alarm fire that occurred on August 26, 2015 at the Poinciana Plaza strip mall (“Plaza”) in Santa Clara County. (Complaint at ¶ 1.) Immediately to the north of the subject gas meter was a parking lot for an adjacent 7-Eleven, Inc. (“7-Eleven”) convenience store. (Id. at ¶ 23.) Between the gas meter and the boundary of the parking lot there were only 10 feet or so of empty space. (Ibid.) The 7-Eleven parking lot itself had only a small parking curb and no other structure or enclosure existed along its southern boundary so as to stop or slow a vehicle from entering the Plaza property. (Ibid.)

As for the PG&E gas meter unit, no signs or markings alerted drivers of its presence. (Complaint at ¶ 24.) Rather, all that protected the gas meter was a small enclosure of chain-link fence. (Ibid.)

The explosion was triggered when a car in the 7-Eleven parking lot adjacent to the Plaza, driven by defendant Sara Desugura (“Desugura”) and owned by defendant Samual Donis, who was also present in the vehicle, struck an exposed and/or unmarked PG&E gas meter on the north side of the Plaza. (Complaint at ¶¶ 2, 22.)

PG&E was called out to shut off the gas, but it took several hours and use of a backhoe in numerous locations before PG&E discovered its own shut-off point, thereby allowing the fire to damage the entire Plaza over the course of five hours. (Complaint at ¶ 3.) By the time PG&E did cap the gas line, the Plaza was destroyed. (Ibid.) The fire decimated five local small businesses; four of which are plaintiffs named in this action and all of which were lessees of the Plaza. (Id. at ¶ 21.)

This was not the first time that a 7-Eleven consumer drove a vehicle from the 7-Eleven parking lot into the north side of the Plaza. (Complaint at ¶ 28.) There were at least two other incidents involving cars from the 7-Eleven parking lot striking the northern side of the Plaza that occurred between 2010 and 2015. (Ibid.) In one of these incidents, the motorist struck an exposed electrical box adjacent to the subject gas meter, which caused damage to the electrical box and required the attention of PG&E and Florence Sordello (“Sordello”), the landlord and owner of the Plaza, at the scene. (Ibid.)

Despite these prior instances and the obvious danger of having an exposed gas meter immediately adjacent to a parking lot, neither PG&E, 7-Eleven nor Sordello, undertook any mitigation efforts against this hazard. (Id. at ¶ 29.)

The operative Complaint sets forth causes of action for: (1) negligence; (2) premises liability; (3) private nuisance; (4) public nuisance; (5) trespass; (6) inverse condemnation; and (7) negligent entrustment. Various cross-complaints were also filed in this action.

7-Eleven’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication to the Complaint

Currently before the Court is the motion for summary judgment, or in the alternative, summary adjudication to the Complaint by defendant 7-Eleven. The second, third, and fourth causes of action are directed to defendant 7-Eleven. Plaintiffs and defendant 7-Eleven filed requests for judicial notice in conjunction with the motion. Plaintiffs and PG&E filed separate written oppositions to the motion. Plaintiffs also filed objections to evidence. Defendant 7-Eleven filed reply papers and objections to evidence. A trial setting conference is set for August 14, 2018.

7-Eleven’s Request for Judicial Notice

Defendant 7-Eleven requests judicial notice of certain factual allegations in paragraph 2 of the Complaint. The Court may take judicial notice of such allegations under Evidence Code section 452, subdivision (d) as the Complaint constitutes a record of the superior court. (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own file].) Therefore, the request for judicial notice is GRANTED.

Plaintiffs’ Request for Judicial Notice

Plaintiffs’ request for judicial notice is DENIED as Exhibits A, B, and C are not relevant in resolving in issues raised by the motion. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [judicial notice is confined to those matters which are relevant to the issue at hand].)

Plaintiffs’ Evidentiary Objections

Plaintiffs’ evidentiary objections are OVERRULED.

7-Eleven’s Evidentiary Objections

In reply, defendant 7-Eleven filed objections to the evidence submitted by Plaintiffs and PG&E in their opposition papers. The Court declines to rule on the objections as they are not material in resolving issues raised by the motion. (See Code Civ. Proc., § 437c, subd. (q) [in granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion].)

Legal Standard

“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].)

Similarly, “[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. A motion for summary adjudication…shall proceed in all procedural respects as a motion for summary judgment.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630 [internal citations and quotation marks omitted].)

Second Cause of Action: Premises Liability

The second cause of action is a claim for premises liability. “As in a general negligence cause of action, a plaintiff bringing an action for premises liability based on a negligence theory must plead and prove that the defendant breached a duty of care owed to the plaintiff that proximately caused injury and damages. [Citation.] Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm.” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37 (Annocki).)

According to the Complaint, defendant 7-Eleven owned, leased, occupied, controlled, operated, managed, and/or maintained the subject parking lot adjacent to the subject gas meter. (Complaint at ¶ 42.) 7-Eleven breached its duty of care in part by failing to maintain, install, erect and/or repair a barrier and/or enclosure to the parking lot approximately ten feet adjacent to a gas meter. (Id. at ¶ 44.) As a result of this conduct, Plaintiffs suffered damages. (Id. at ¶ 45.)
On summary judgment and summary adjudication, defendant 7-Eleven argues that Plaintiffs cannot establish the elements of duty, breach of duty, and causation to support their claim for premises liability.

Duty

“A landowner owes a duty to exercise reasonable care to maintain his or her property in such a manner as to avoid exposing others to an unreasonable risk of injury. [Citations.] The failure to fulfill the duty is negligence. [Citation.] The existence of a duty of care is an issue of law for the court. [Citation.]” (Barnes v. Black (1999) 71 Cal.App.4th 1473, 1478 (Barnes).)

The following factors determine the scope of the landowner’s duty of care under the relevant circumstances: the foreseeability of harm to the injured party; the degree of certainty he or she suffered injury; the closeness of the connection between the defendant’s conduct and the injury suffered; the moral blame attached to the defendant’s conduct; the policy of preventing future harm; the extent of the burden to defendant and the consequences to the community of imposing a duty of care with resulting liability for breach; and the availability, cost, and prevalence of insurance for the risk involved. (Rowland v. Christian (1968) 69 Cal.2d 108, 113 (Rowland).)

As a preliminary matter, the Court finds that defendant 7-Eleven’s argument is underdeveloped as it fails to provide a duty analysis under the Rowland factors. Instead, 7-Eleven argues it did not owe a duty to Plaintiffs as it did not own or control the Plaza or the gas meter where the damages occurred as a result of the fire. (See 7-Eleven’s Separate Statement of Undisputed Facts at Nos. 3, 4, 5, 6; see also Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1623 [apartment complex owes no duty to minor resident injured on busy adjacent street]; Donnell v. California Western School of Law (1988) 200 Cal.App.3d 715, 718, fn. 1 [school owes no duty to law student assaulted on adjacent public sidewalk].)

“In most instances, where there is no control over the premises, there is no duty to exercise reasonable care to prevent injury. [Citation.] Generally, ‘a landowner has no right to control and manage premises owned by another.’ [Citation.] Thus, usually, a landowner has no duty to prevent injury on adjacent property. [Citations.] Similarly, an adjacent landowner has no duty to warn of dangers outside of his or her property if the owner did not create the danger. [Citation.]” (Annocki, supra, 232 Cal.App.4th at p. 37.)

However, “[t]he fact that the injuries occurred on the adjacent property does not automatically bar recovery.” (McDaniel v. Sunset Manor Co. (1990) 220 Cal.App.3d 1, 7.) In fact, “[a] landowner’s duty of care to avoid exposing others to a risk of injury is not limited to injuries that occur on premises owned or controlled by the landowner. Rather, the duty of care encompasses a duty to avoid exposing persons to risks of injury that occur off site if the landowner’s property is maintained in such a manner as to expose persons to an unreasonable risk of injury off-site. [Citations.] The Rowland factors determine the scope of a duty of care whether risk of harm is situated on site or off site. [Citation.]” (Barnes, supra, 71 Cal.App.4th at pp. 1478-1479.)

For example, in McGarvey v. Pacific Gas & Elec. Co. (1971) 18 Cal.App.3d 555 (McGarvey), an employee of Pacific, while making a U-turn next to the Pacific plant, struck plaintiff, a motorcyclist. Plaintiff alleged that Pacific failed to provide parking space to accommodate all the cars of its employees, and that it encouraged employees to park on the street and knew that its employees made U-turns and created traffic congestion. The McGarvey court rejected plaintiff’s argument that Pacific owed him a duty of care. In doing so, the appellate court pointed out that a characteristic of modern life is inadequate parking and traffic jams. (Id. at p. 562.) The McGarvey court, however, acknowledged that “[c]ircumstances can be conceived where an occupier of land could create automobile snarl-ups on his premises or unleash forces onto public streets the nature of which would require a court to say that injury to third persons was foreseeable and that a duty of care existed and was breached.” (Ibid.)

Thereafter, in Barnes, cited in opposition, the plaintiffs sued their apartment owner for wrongful death when their young child was hit by a car in front of their apartment complex. The complex included a private sidewalk that led to a play area and a steep driveway adjacent to the sidewalk that sloped downhill and led to a busy public street. The plaintiffs’ son was riding his tricycle along the complex’s private sidewalk when he lost control, rolled down the steep driveway, and entered the busy public street where he was hit by a car. The trial court granted the apartment owner’s motion for summary judgment, concluding the owner owed no duty to prevent the injury because the injury occurred on an adjacent public street the owner did not own, possess, or control. (Barnes, supra, 71 Cal.App.4th at pp. 1476-1477.)

The Barnes court reversed, explaining the location of the injury was not dispositive of whether a duty existed because the apartment owner “fail[ed] to offer any evidence to negate the allegations the sidewalk commonly used by children coming and going to the play area and situated at the top of a steep driveway leading to a busy street, without a fence or other barrier between the sidewalk and the driveway, created a dangerous condition that contributed to the injury.” (Barnes, supra, 71 Cal.App.4th at p. 1479.) In addition, the evidence showed the apartment owner knew of the danger presented by the configuration of the play area, sidewalk, and steep driveway because residents previously had complained about it after witnessing other children roll down the driveway and nearly into the street. (Id. at p. 1476.) The appellate court thus concluded the apartment owner had a duty to protect children “being ejected from [the owner’s] premises by its dangerous configuration at a point where resident young children were known to ride wheeled toys.” (Id. at p. 1480.)

More recently, in Annocki, also cited in opposition, the plaintiffs sued a restaurant for their son’s death in an automobile accident on an adjacent public street. The restaurant was located on a busy stretch of Pacific Coast Highway in Malibu where temporary traffic dividers had been placed in the middle of the road that prevented drivers from making a left turn when exiting the restaurant’s parking lot. A patron leaving the restaurant after dark did not see the barriers and turned left into oncoming traffic on Pacific Coast Highway, colliding with the plaintiffs’ son. The trial court sustained the restaurant’s demurrer, concluding the restaurant owed no duty to warn about the alleged dangerous condition the traffic dividers created on an adjacent public street the restaurant did not own, possess, or control. (Annocki, supra, 232 Cal.App.4th at pp. 34-35.)

The Annocki court reversed, concluding the restaurant owed a duty to warn about the dangerous condition because it knew of the condition and its parking lot was configured in a manner that increased the risk the condition posed. One of the two exits from the restaurant’s parking lot was on a hill that made it difficult to see the dividers and approaching traffic, but the restaurant failed to warn patrons or direct them to use the other exit that provided a better view of the roadway. Furthermore, despite knowing the dividers created a dangerous condition and were more difficult to see at night, the restaurant neither warned patrons about the dividers nor posted signs informing patrons they could only turn right when exiting the parking lot. (Annocki, supra, 232 Cal.App.4th at pp. 35, 38-39.)

Here, Plaintiffs concede that defendant 7-Eleven did not own or control the Plaza or the gas meter. (See Plaintiffs’ OPP at p. 6.) The premises liability claim however is directed toward the dangerous condition that existed on 7-Eleven’s property. (Complaint at ¶¶ 42, 44.) In particular, the design of 7-Eleven’s parking lot in relation to the adjoining Plaza. As stated above, a duty of care encompasses a duty to avoid exposing persons to risks of injury that occur off site if the landowner’s property is maintained in such a manner as to expose persons to an unreasonable risk of injury off-site. (Barnes, supra, 71 Cal.App.4th at pp. 1478-1479.) The moving papers fail to address the duty of care issue in accordance with the theory alleged in the Complaint and thus the argument does not support a basis for summary judgment or summary adjudication. (See Lopez v. Super. Ct. (1996) 45 Cal.App.4th 705, 717 [the party moving for summary judgment has the burden to show it was entitled to judgment with respect to all theories of liability asserted by the plaintiff].)

In addition, defendant 7-Eleven argues no duty should be imposed as it had no notice of Desugura’s lack of driving competence. (See 7-Eleven’s Separate Statement of Undisputed Facts at Nos. 10, 17-22.) Plaintiffs however persuasively argue that they are not relying on a vicarious liability theory. In other words, Plaintiffs do not argue that a special relationship exists between 7-Eleven and Desugura giving rise to liability for Desugura’s conduct. Rather, Plaintiffs are attempting to hold 7-Eleven liable for negligent maintenance of its own parking lot. This argument therefore does not support grounds for summary judgment or summary adjudication.

Breach of Duty

Defendant 7-Eleven’s breach of duty argument relies on the same evidence and arguments raised with respect to the duty issue. Therefore, for reasons stated above, the breach of duty issue is not resolved on summary judgment or summary adjudication. (See McGarry v. Sax (2008) 158 Cal.App.4th 983, 994 [the question of breach of duty of care is a question of fact for determination by the jury].)

Causation

“California has adopted the ‘substantial factor’ test for cause-in-fact determinations.” (Lawrence v. La Jolla Beach and Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 33.) “A defendant’s negligent conduct may combine with another factor to cause harm; if a defendant’s negligence was a substantial factor in causing the plaintiff’s harm, then the defendant is responsible for the harm; a defendant cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing the plaintiff’s harm; but conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.” (Yanez v. Plummer (2013) 221 Cal.App.4th 180, 187.)

“In California, the causation element of negligence is satisfied when the plaintiff establishes (1) that the defendant’s breach of duty (his negligent act or omission) was a substantial factor in bringing about the plaintiff’s harm and (2) that there is no rule of law relieving the defendant of liability.” (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 481.)

“Like breach of duty, causation also is ordinarily a question of fact which cannot be resolved by summary judgment. The issue of causation may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable difference of opinion.” (Nichols v. Keller (1993) 15 Cal.App.4th 1672, 1687.)

Defendant 7-Eleven argues that, based on Plaintiffs’ responses to requests for admissions (“RFA”) during discovery, that there is no evidence to support the element of proximate causation.

“Admissions in response to RFAs are treated in effect as stipulations to the truthfulness of the matters admitted. Therefore, no other evidence is necessary to establish the point at trial and no contrary evidence is admissible unless leave of court is obtained to withdraw or amend the response.” (Weil & Brown, CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2018) ¶ 8:1388, p. 8G-30; Code Civ. Proc., §§ 2033.300-2033.410; see Murillo v. Super. Ct. (2006) 143 Cal.App.4th 730, 736; Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522.)

In addition, an RFA response is preclusive only to the extent required by a literal reading of the request. (Burch v. Gombos (2000) 82 Cal.App.4th 352, 359.)

“The court retains discretion to determine the scope and effect of a party’s admission. The court may determine whether it accurately reflects the truth in light of other evidence in the case. This prevents requests for admission being misused as a device to hide or confuse issues.” (Weil & Brown, supra, ¶ 8:1390, p. 8G-31; see Fredericks v. Filbert Co. (1987) 189 Cal.App.3d 272, 278.)
In support, defendant 7-Eleven relies on Plaintiffs’ responses and amended responses to the following RFAs:

RFA No. 13: “At the time of the INCIDENT, no physical condition of 7-Eleven’s PROPERTY caused defendant Desugura to press on the car’s gas pedal instead of the car’s brake.”

RFA No. 16: On August 26, 2015, no then existing physical condition of 7-Eleven’s PROPERTY caused defendant Desugura to drive into the gas meter located on the PLAZA.”

(See 7-Eleven’s Separate Statement of Undisputed Facts at Nos. 13-14.)

In both their responses and amended responses, Plaintiffs answered “Admit” to these RFAs albeit subject to various objections. These admissions however do not resolve the issue of proximate causation for purposes of summary judgment or summary adjudication. As an initial matter, these RFAs do not directly identify the issue of proximate causation. This differs from defendant 7-Eleven’s RFA Nos. 19-20 which explicitly identify the issue of public and private nuisance. (See 7-Eleven’s Separate Statement of Undisputed Facts at Nos. 15-16 [“At the time of the INCIDENT, 7-Eleven’s PROPERTY did not constitute a public (or private) nuisance”.].) Thus, a response admitting the information in RFA Nos. 19 and 20 would clearly remove the nuisance issue from this litigation.

That is not the case with RFA Nos. 13 and 16 which, as Plaintiffs argue in opposition, appear to hide or confuse the issue of proximate causation. For example, it is not clear what the phrase “no physical condition” or “no then existing physical condition” means as defendant 7-Eleven did not define the phrase in propounding its RFAs. Also, as stated above, causation requires a showing that a defendant’s breach of duty was a substantial factor in bringing about the plaintiff’s harm. RFA Nos. 13 and 16 do not even address the substantial factor issue with respect to causation. Furthermore, Plaintiffs allege it was 7-Eleven’s failure to maintain, install, erect and/or repair a barrier to the parking lot which caused the incident. (See Complaint at ¶ 44; see also County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 332 [a motion for summary judgment must be directed to the issues raised by the pleadings].) Had 7-Eleven propounded an RFA asking Plaintiffs to admit that 7-Eleven’s failure “to maintain, install, erect and/or repair a barrier and/or enclosure to the parking lot approximately ten feet adjacent to a gas meter” was the proximate cause of their damages, followed thereafter by an admission from Plaintiffs, the Court would likely reach a different result. Defendant 7-Eleven did not and thus fails to meet its initial burden on the issue of proximate causation.

Accordingly, the motion for summary judgment is DENIED. The motion for summary adjudication to the second cause of action is DENIED.

Third and Fourth Causes of Action: Private Nuisance and Public Nuisance

The third and fourth causes of action are claims for private nuisance and public nuisance respectively. Defendant 7-Eleven argues that, based on Plaintiffs’ responses to their RFAs, that there is no evidence to support the nuisance claims. (See 7-Eleven’s Separate Statement of Undisputed Facts at Nos. 15-16.) Plaintiffs concede that 7-Eleven’s property did not constitute a private or public nuisance and thus do not contest the arguments raised on summary adjudication. (See Plaintiffs’ OPP at p.1, fn. 1.)

Therefore, the motion for summary adjudication to the third and fourth causes of action is GRANTED.