Case Number: BC642885 Hearing Date: October 19, 2018 Dept: 7

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; MOTION DENIED

I. INTRODUCTION

On December 6, 2016, Plaintiff Rexann Jasso (“Plaintiff”) filed this action against Defendant Wal-Mart Stores, Inc. (“Defendant”) for general negligence and premises liability relating to a March 26, 2016 trip and fall at Defendant’s Sam’s Club Store (“the Store”). Defendant moves for summary judgment on grounds the condition on which Plaintiff tripped—a shopping cart—was open and obvious.

II. FACTUAL BACKGROUND

Plaintiff alleges that she tripped and fell due to a shopping cart being left in a way as to block the walkway of the Store. (Undisputed Material Fact “UMF” No. 1.) Plaintiff was employed by the Store but was not working at the store on the day of the accident. (UMF No. 2.) Instead, she was doing a fundraiser for First United Methodist Food Bank and was selling baskets in front of the store. (Pltff’s Depo., 15:21-22.) Plaintiff entered the Store to use the restroom. (UMF No. 3.) At 8:22:03 a.m., Plaintiff passed the subject shopping cart and walked around it on the way to the restroom. (UMF No. 12.) At 8:25:17 a.m., Plaintiff left the restroom and fell at 8:25:21 a.m. in front of the store manager’s office. (UMF Nos. 5, 14, 15.)

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. 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.” (Code of Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code of Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code of Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) In other words, a defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“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 the cause of action or a defense thereto.” (Code of Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. EVIDENTIARY OBJECTIONS

Plaintiff’s Objections to the Declaration of Mike Ruiz

Objection Nos. 1-4 are OVERRULED.

Objection No. 5 is SUSTAINED as to lacks personal knowledge and speculation.

Defendant’s Objections to the Declaration of Plaintiff

Objection Nos. 1-7, and 11-17 are OVERRULED.

Objection Nos. 8, 9, and 10 are SUSTAINED as to speculation.

V. DISCUSSION

Plaintiff alleges negligence and premises liability against Defendants. As framed by the First Amended Complaint (FAC), Plaintiff alleges Defendant breached its duty to Plaintiff by: (1) allowing a shopping cart to be left in a way as to block a walkway; (2) failing to warn Plaintiff of the existence of the shopping chart; (3) failing to properly supervise the common areas so as to furnish a safe shopping experience free from hazards; (4) failing to properly inspect the walkways; and (5) failing to maintain the premises in good and safe condition. (FAC, ¶ GN-1.)

The elements of negligence are duty, breach, causation and damages. (County of Santa Clara v. Atl. Richfield Co. (2006) 137 Cal.App.4th 292, 318.) “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; Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

While an owner of premises is not an insurer of the safety of its patrons, the owner still owes them a duty to exercise reasonable care in keeping the premises reasonably safe. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) “A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.” (Ibid.) The exercise of ordinary care may require the owner to take greater precautions or to make more frequent inspections, but ultimately, the owner must use the care required of a reasonably prudent person acting under the same circumstances. (Ibid.)

To establish liability for negligence, “[t]here must be some evidence . . . to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.” (Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, 829; Ortega, supra, 26 Cal.4th at p. 1206 [the owner must have had actual or constructive knowledge of the dangerous condition or have had the ability, through the exercise of ordinary care, to discover it, and sufficient time to correct it].)

Defendant argues it had no duty to warn Plaintiff of the shopping cart because it was open and obvious and it had no duty to remedy the condition. “Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition.” (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th 387, 393.) However, this is not always the case. (Ibid.)

Relying on surveillance footage from the Store, Defendant argues the shopping cart is open and obvious. Defendant cites to cases regarding the obviousness of dangers. (See e.g., Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126; Danieley v. Goldmine Ski Associates (1990) 218 Cal.App.4d 111, 121.) However, it is clear that “the obviousness of a condition does not necessarily excuse the potential duty of a landowner, not simply to warn of the condition but to rectify it.” (Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184.) The obviousness of a danger “may obviate the duty to warn of its existence,” but if “if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g, when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability . . .” (Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122 (reversing defense verdict where modified jury
instruction, found to be prejudicial, stated categorically that a property owner
cannot be held liable for injury caused from an obvious danger).)

Therefore, while the shopping cart may have been an open and obvious condition such that Defendant did not have a duty to warn of its presence, Defendant must also present evidence showing it was not foreseeable that the danger might cause injury despite the fact that it was obvious.

For example, in Martinez, supra, the alleged dangerous condition was water and wetness on a sidewalk. (Martinez, supra, 121 Cal.App.4th at p. 1184.) The trial court found the water was open and obvious and, on that basis, found defendant owed no duty. (Ibid.) The court granted summary judgment. (Ibid.) However, the appellate court found that the analysis was incomplete and the trial court’s ruling was a premature conclusion of no duty and therefore no liability. (Id. at p. 1185.) Specifically, the court stated, “[t]he palpable appearance of the wetness may itself have provided a warning of the slippery condition, excusing defendant from having to do so. But it may yet have been predictable that despite that constructive warning, the wet pavement would still attract pedestrian use” and “[w]hether such a duty [to remedy the condition] existed depends upon a number of as yet unresolved factors, such as the foreseeability of harm, defendant’s advance knowledge vel non of the dangerous condition, and the burden of discharging the duty.” (Ibid.)

Defendant argues there was nothing blocking Plaintiff’s view of the shopping cart and that the surveillance footage directly contradicts her testimony that she did not see it. Defendant argues that because Plaintiff walked past the cart on her way to the restroom, she knew of its presence and Defendant owed no duty to warn of or remedy the condition. Defendant also argues that two other customers passed by the cart without incident and therefore, the cart did not pose an unreasonable risk of harm. These arguments bear on the “open and obvious” nature of the cart. However, again, even where a condition may be open and obvious, Defendant must present some evidence that it is not foreseeable that the condition could still cause injury.

Therefore, Defendant has failed to meet its initial burden of showing the causes of action have no merit. Because Defendant did not meet its initial burden, the burden did not shift to Plaintiff and the Court did not consider Plaintiff’s Opposition or Defendant’s Reply.

VI. CONCLUSION

For the foregoing reasons, the Motion for summary judgment is DENIED.

Moving party to give notice.