Case Number: BC657016 Hearing Date: April 06, 2018 Dept: 92

SANG EUN LEE,

Plaintiff(s),

vs.

H MART OF LOS ANGELES, LLC, ET AL.,

Defendant(s).

CASE NO: BC657016

[TENTATIVE] ORDER DENYING MOTION FOR SUMMARY JUDGMENT

Dept. 92

1:30 p.m.

April 6, 2018

1. Allegations of Complaint

Plaintiff, Sang Eun Lee filed this action against Defendants, H Mart of Los Angeles, LLC and Pulmuone U.S.A., Inc. for damages arising out of a slip and fall incident. H Mart owned the grocery store where Plaintiff fell, and Pulmuone was handing out samples of dumplings at the store. Plaintiff’s complaint contains causes of action for premises liability against H Mart and general negligence against H Mart and Pulmuone. H Mart and Pulmuone have each filed cross-complaints against the other for indemnification and related claims.

Plaintiff alleges she slipped and fell on one of the dumplings that had been served by Pulmuone and dropped by a customer. The fall occurred approximately fifteen feet away from the demonstration area. Fact 11. Plaintiff walked into the store and past the cashiers, and the fall occurred approximately 3-4 meters later. Fact 2.

2. Initial Note

Both Plaintiff and H Mart filed timely oppositions to Pulmuone’s motion. Pulmuone filed timely replies to each of the oppositions.

3. Evidentiary Objections

H Mart submitted evidentiary objections with its opposition to the motion. H Mart improperly objects to a fact in the separate statement, as opposed to the evidence itself. This is not proper. CRC 3.1354(b). The Court therefore declines to rule on the objection.

4. Initial Note

Pulmuone’s moving papers fail to comply with CRC 3.1110(f), which requires exhibits to be tabbed. This failure rendered reviewing the evidence very difficult for the Court. Counsel is requested to ensure compliance with all Rules of Court in this and other matters before the Court.

5. Arguments in Support of Motion for Summary Judgment

Pulmuone argues it is entitled to judgment as a matter of law because:

· Pulmuone had no duty to clean the area where Plaintiff fell;

· Pulmuone lacked actual or constructive notice of the dumpling in order to clean it prior to the fall;

· There is no evidence that Pulmuone breached a duty to Plaintiff;

· There is no evidence that any breach of any duty caused Plaintiff’s harm.

Pulmuone also argues it is entitled to judgment as a matter of law on the cross-complaint, contending the only indemnification agreement signed between the parties was signed after the incident, and the equitable indemnification and related claims fail absent actionable negligence on Pulmuone’s part.

a. No Duty to Clean Area Where Plaintiff Fell

It is undisputed that the area where Plaintiff fell was approximately fifteen feet away from where Pulmuone was providing samples. UF no. 2. Pulmuone contends it had no duty to clean the area where Plaintiff fell. Pulmuone relies on the deposition testimony of Choi, the store manager, wherein he states that demonstrators are supposed to clean the area surrounding the demonstration, and that store employees are charged with cleaning other areas of the store, including the area around the cash registers. UF nos. 21,22.

The Court finds Pulmuone failed to meet its burden to show that it had no duty to clean the area where Plaintiff fell. First, whether or not Pulmuone had a duty to Plaintiff is not dependent on the understanding of the store manager regarding the store policy as to what areas each defendant was responsible for cleaning.

Second, even under the manager’s understanding as he described in his deposition testimony it is not clear. Since the fall occurred fifteen feet from the demonstration area the Court cannot conclude, as a matter of law, whether Pulmuone or H Mart had the obligation to clean the area where Plaintiff slipped and fell. There is nothing in the evidence cited by Pulmuone to define the size of “the area where samples are served”. Choi admitted that there were no physical obstructions blocking the demonstrator’s view of the area where the fall occurred. Choi Depo 118-119.

Pulmuone failed to establish, as a matter of law, that it was not obligated to clean the area where Plaintiff fell. It therefore failed to establish it owed Plaintiff no duty, and the motion on this ground is denied.

As an aside, Plaintiff also argues Pulmuone was negligent for providing its samples on toothpicks instead of cups or bowls, with the result being it is easier for the dumplings to fall on the floor causing a hazard to unwary shoppers. This Court is not prepared to rule as a matter of law that this theory of negligence is not viable based on a lack of duty. As the court observed in Melton v. Boustred (2010) 183 Cal.App.4th 521, 529-530, a case cited in Pulmuone’s reply, “The existence of a legal duty depends upon the foreseeability of the risk and a weighing of policy considerations for and against imposition of liabiltity.” The Melton court explained that Civil Code 1714 is the normal rule and “no exception from this fundamental principle should be made unless clearly supported by public policy.” Id. at 530 quoting Rowland v. Christian (1968) 69 Cal.2d 1008,112. Here, Pulmuone has not addressed the issues of what policy considerations weigh against imposing a duty on it nor the forseeability of the risk to Plaintiff from its conduct.

b. Lack of Notice

Pulmuone claims it is entitled to summary judgment because Plaintiff has no evidence of the length of time the dumpling was on the floor before the fall. Setting aside the question of whether Pulmuone submitted sufficient evidence of lack of constructive notice to shift the burden to Plaintiff, the motion is deficient as to lack of actual notice. There is no fact in the separate statement negating actual notice of the dumpling. There is no testimony from the person who was serving samples establishing that he did not see the dumpling prior to the fall. The motion on the ground that Pulmuone lacked actual or constructive notice of the dumpling prior to the fall is therefore also denied.

c. Breach and Causation

Pulmuone’s breach and causation arguments fail for the same reason its duty argument fails. If Pulmuone had a duty to keep the subject area clear, there are consequent triable issues of material fact concerning whether it breached that duty, and whether the breach of that duty caused Plaintiff to fall. The motion for summary judgment on these grounds is therefore also denied.

d. Cross-Complaint

Pulmuone seeks summary judgment on the cross-complaint, but not summary adjudication of the causes of action in the cross-complaint. Thus, even if Pulmuone is correct that there is no express contractual obligation to indemnify, the motion for summary judgment must be denied.

6. Disposition

Pulmuone failed to meet its burden to establish it is entitled to judgment as a matter of law on the complaint and/or cross-complaint. Its motion is therefore denied. Pulmuone is ordered to give notice.