Brown vs. The Kroger Co

Attorney’s Fees Attorney’s fees are warranted. A prevailing party on a motion to expunge a lis pendens is entitled to recover reasonable attorney’s fees and costs under CCP § 405.38, unless the judge finds that the other party acted with substantial justification or that other circumstances make the imposition of fees unjust. (Hunting World, Inc. v Superior Court (1994) 22 Cal.App.4th 67, 74; Blackburn v Charnley (2004) 117 Cal.App.4th 758, 768 (award upheld).) A judge is not authorized to award attorney’s fees against the losing party’s attorney rather than the party. (Doyle v Superior Court (1991) 226 Cal.App.3d 1355, 1359.)

Plaintiff is ordered to pay Defense Counsel $17,800 in reasonable attorney’s fees for time spent on this Motion.

Defendant shall serve notice of this Order.

9. 2024-1424513 Defendant Ralphs Grocery Co. dba Ralphs’ motion for summary Brown vs. The adjudication as to the Complaint of Plaintiff Colton Brown is Kroger Co granted.

Defendant’s objection to the declaration of Bruse Lujan is overruled. Defendant’s objection to the entire declaration of Mark Burns is overruled. Defendant’s objection No. 1 to the Burns declaration is overruled and its objection Nos. 2-8 are sustained.

“[F]rom commencement to conclusion, the 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.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Id. at p. 851.) A defendant moving for summary judgment satisfies his or her initial burden by showing 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 Civ.

Proc., § 437c, subd. (p)(2).) The scope of this burden is determined by the allegations of the plaintiff’s complaint. (FPI Development v. Nakashima (1991) 231 Cal.App.3d 367, 381-382 [pleadings serve as the outer measure of materiality in a summary judgment motion]; 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18-19 [defendant only required to defeat allegations reasonably contained in the complaint].)

A cause of action cannot be established if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.) Alternatively, a moving defendant can

show that a cause of action cannot be established by submitting evidence, such as discovery admissions and responses, that plaintiff does not have and cannot reasonably obtain evidence to establish an essential element of his cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 854-855; Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [finding moving defendant may show plaintiff’s lack of evidence by factually devoid discovery responses after plaintiff has had adequate opportunity for discovery]; see Scheiding v.

Dinwiddie Constr. Co. (1999) 69 Cal.App.4th 64, 80-81 [finding Union Bank rule only applies where discovery requests are broad enough to elicit all such information].) Once a defendant meets its prima facie showing, the burden shifts to the plaintiff to show by reference to specific facts the existence of a triable issue as to that affirmative defense or cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.)

Plaintiff’s separate statement

In his separate statement, Plaintiff does not clearly state whether Defendant’s facts are disputed or undisputed pursuant to Code Civ. Proc., § 437c(b)(3) and CRC, Rule 3.1350.

The court in Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1086 notes that “subdivision (b) of section 437c allows the court, in its discretion, to grant summary judgment if the opposing party fails to file a proper separate statement,” so long as it is determined that the moving party meets its initial burden of proof.

Here, the Court finds not only that Plaintiff failed to file a proper separate statement; but he additionally fails to demonstrate the existence of any triable issues of material fact as set forth below.

Merits

The elements of negligence are: “(1) a legal duty to use due care; (2) a breach of such legal duty; [and] (3) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

The elements of premises liability are: (1) Defendant owned/leased/occupied/controlled the property, (2) Defendant was negligent in the use or maintenance of the property, (3) Cross- Complainant was harmed, and (4) Defendant’s negligence was a substantial factor in causing Cross-Complainant’s harm. (CACI 1000; Hall v. Aurora Loan Services, LLC (2013) 215 Cal.App.4th 1134, 1139. (“The same concepts of duty applicable to general negligence claims apply to premises liability claims.”).) “The existence and scope of duty are legal questions for the court.”

(Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 36 [citing Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 477].)

It is well established in California that although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)

In a case like this, Plaintiff has the burden of proving that Ralphs had actual or constructive knowledge of a dangerous condition (here, the water on the floor) and time to correct it, or that Ralphs was able, by the exercise of ordinary care, to discover the condition. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206; Hatfield v. Levy Brothers (1941) 18 Cal.2d 798, 806.) “Because the owner is not the insurer of the visitor’s personal safety [citation], the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” (Ortega, supra at 1206; see also Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476.)

Defendant here argues that there is no evidence that Defendant had actual or constructive notice of the dangerous condition. It notes that its employee, Ryan Wyant swept the floor where the incident occurred less than two minutes prior to Plaintiff’s fall. (UMF 6-8.)

The video lodged as Defendant’s Ex. B (and Plaintiff’s Ex. B and F) shows Wyant sweeping the area at 11:18:47 and Plaintiff falling at 11:20:20.

In opposition, Plaintiff contends that the sweep of the floor was not a proper sweep. The evidence does not support this conclusion.

The evidence establishes that Defendant’s employee swept the floor where Plaintiff fell less than two minutes prior to the fall. Specifically, the video shows that the employee – Wyant - walked over the area, following the sweeper and did not fall at 11:18:47. In addition, a person walked over the area immediately before the sweep at 11:18:39 and did not fall. (Defendant’s lodged Ex. B.)

After the sweep, four additional customers walked over the area and did not fall. (Id.) Finally, Plaintiff is seen falling at 11:20:20. (Id.)

Therefore, Court finds that there is no triable issue of fact as to whether the sweep was defective, leaving a puddle of water on the floor, resulting in Plaintiff’s fall (i.e., that Defendant created the dangerous condition and/or had actual notice of the dangerous condition rendering it liable for negligence and premises liability).

Furthermore, the evidence does not support that Defendant had constructive notice of water on the floor where Plaintiff fell.

In Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, the plaintiff slipped on a banana peel. The Court of Appeal affirmed the trial court’s grant of judgment notwithstanding the verdict as there was no substantial evidence to support a finding that the defendant was negligent. The court found that it was significant that the only evidence as to how long the dangerous condition existed was testimony from a customer stating that she saw the banana for a minute and a half before the accident. (Id. at 828.)

The court held that “the circumstances are such as to afford no basis for an inference that the condition was created by the proprietor or his employees,” and therefore, the “question is whether, in the circumstances, it can be inferred that the dangerous condition had existed for such a length of time as to justify charging the defendant with lack of ordinary care in failing to discover and remedy it before the plaintiff was injured.” (Id. at 831.)

In Ortega v. Kmart Corp., (2001) 26 Cal.4th 1200, the plaintiff slipped on a puddle of milk in a grocery store. The California Supreme Court affirmed the jury verdict in favor of the plaintiff, in light of his evidence that an inspection had not been made within a reasonable time. The court held that although a plaintiff has the burden to prove the owner had actual or constructive notice of the defect in sufficient time to correct it, evidence of defendant’s failure to inspect the premises within a reasonable period of time was sufficient to allow an inference that the milk was on the floor long enough to give defendant the opportunity to discover and remedy it, which was a question of fact for the jury. (See Id. at 1203.)

As noted above, video evidence shows that the floor where Plaintiff fell was swept by an employee of Defendant at 11:18:47, and Plaintiff fell less than two minutes later at 11:20:20. (Defendant’s lodged Ex. B.)

This time lapse of approximately 1 minute and 40 seconds is not sufficient to impart constructive notice of any potentially dangerous condition on the part of Defendant pursuant to Ortega.

The motion for summary judgment is thus granted as Defendant establishes that Plaintiff lacks evidence to support the duty element of his claims. Plaintiff fails to meet his burden of proof to show that Defendant had actual or constructive notice of the dangerous condition in sufficient time to correct it.

Defendant shall give notice.

10. 2024-1376456 Defendant BMW of North America, LLC’s motion for summary Khorramian judgment on plaintiff Reza Khorramian complaint is denied. vs. BMW of Defendant’s motion for summary adjudication is granted in part and North America, denied in part. The motion is granted as to Plaintiff’s fifth cause of LLC action for violation of the Consumer Legal Remedies Act; the motion is otherwise denied.

Facts This is essentially a Song-Beverly action. Plaintiff asserts five causes of action against Defendant BMW: (1) breach of express warranty in violation of Song-Beverly; (2) breach of implied warranty in violation of Song-Beverly; (3) Violation of Song Beverly, Civil Code § 1793.2(b; (4) violation of the Magnuson-Moss Warranty Act; and (5) violation of the Consumer Legal Remedies Act.

Plaintiff alleges he purchased the BMW vehicle in issue – he paid the down payment and is making the monthly payments. He is a “Buyer” under the Song Beverly Act. [Complaint, ¶¶ 12, 23.] He also alleges the vehicle is a “consumer good” acquired primarily for family or household purposes and Plaintiff has used the Vehicle primarily for those purposes. [Id., ¶ 22.]

Legal Standard

A “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 . . . .” Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. “A prima facie showing is one that is sufficient to support the position of the party in question.” Id. at 851. A defendant seeking summary judgment meets the burden of showing that a cause of action has no merit by showing that one or more elements of the cause of action cannot be established or that there is a complete defense to that cause of action.

Code Civ. Proc. § 437c(p)(2); Villacres v. ABM Industries, Inc. (2010) 189 Cal.App.4th 562, 575. The scope of this burden is determined by the allegations of the plaintiff’s complaint. FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 381–382 (pleadings serve as the outer measure of materiality in a summary judgment motion); 580 Folsom Associates v. Prometheus Development Co. (1990) 223 Cal.App.3d 1, 18–19 (respondent only required to defeat allegations reasonably contained in the complaint).

A cause of action “cannot be established” if the undisputed facts presented by the defendant prove the contrary of the plaintiff’s allegations as a matter of law. Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.