On 06/16/2017 KIMBERLY TALBOT filed a Personal Injury - Other Personal Injury lawsuit against SAKS FIFTH AVENUE. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is LAURA A. SEIGLE. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
LAURA A. SEIGLE
SAKS BEVERLY HILLS PARKING LLC
SAKS BEVERLY HILLS LLC
DOES 1 TO 25
SAKS FIFTH AVENUE
SAKS & COMPANY LLC
BUCHHOLZ SCOTT DARROW
11/28/2018: Proof of Personal Service
11/30/2018: Minute Order
12/27/2018: Demand for Jury Trial
1/29/2019: Minute Order
at 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Order to Show Cause Re: Failure to File Proof of Service (& TSC) - HeldRead MoreRead Less
Minute Order ( (Order to Show Cause Re: Failure to File Proof of Service & TSC)); Filed by ClerkRead MoreRead Less
Declaration (of Trial Counsel); Filed by Saks & Company, LLC (Defendant)Read MoreRead Less
Demand for Jury Trial; Filed by Saks & Company, LLC (Defendant)Read MoreRead Less
Answer; Filed by Saks & Company, LLC (Defendant)Read MoreRead Less
at 08:30 AM in Department 7; Jury Trial - Not Held - Advanced and VacatedRead MoreRead Less
at 10:00 AM in Department 7; Final Status Conference - Not Held - Taken Off Calendar by CourtRead MoreRead Less
Minute Order ((Final Status Conference)); Filed by ClerkRead MoreRead Less
Proof of Personal Service; Filed by James Talbot (Plaintiff); Kimberly Talbot (Plaintiff)Read MoreRead Less
Summons; Filed by James Talbot (Plaintiff); Kimberly Talbot (Plaintiff)Read MoreRead Less
Complaint; Filed by James Talbot (Plaintiff); Kimberly Talbot (Plaintiff)Read MoreRead Less
ComplaintRead MoreRead Less
Case Number: BC665063 Hearing Date: November 19, 2019 Dept: 4B
[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT
On June 16, 2017, plaintiffs Kimberly Talbot (“Kimberly”) and James Talbot (“James”) filed this action against defendant Saks & Company, LLC (erroneously sued as “Saks Fifth Avenue; Saks Beverly Hills, LLC; and Saks Beverly Hills Parking, LLC”) (“Defendant”) for premises liability, negligence, and loss of consortium relating to an injury Kimberly sustained on June 18, 2015. A parking lot gate lowered and hit her head while she was leaving on foot through the vehicular exit of the parking lot after a car had activated the gate. Defendant moves for summary judgment on the grounds that Plaintiff cannot demonstrate a triable issue of material fact as to the required elements for the claims. Defendant contends that it was not negligent, gave adequate warnings, and had no notice of any dangerous condition because there is no evidence of prior complaints or incidents.
II. 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.)
“[T]he initial burden is always on the moving party to make a prima facia 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 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.) The 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 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.)
The elements of a premises liability and negligence cause of action are the same: duty, breach, causation and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) “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.) “‘Liability is particularly appropriate where the landowner has actual knowledge of the danger, e.g., where he has created the condition.’ [Citation.]” (Robison v. Six Flags Theme Parks Inc. (1998) 64 Cal.App.4th 1294, 1304.) 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.)
Summary judgment is appropriate where, viewing the evidence most favorably to the plaintiff, the court determines that no reasonable person would conclude the condition created a substantial risk of injury when such property is used with due care in a manner which is reasonably foreseeable that it would be used. (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 27.) Further, the dangerousness of a defect depends on the surrounding circumstances which might obstruct a person’s view of the defect. (Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927.) “As a general rule, an owner or possessor of land owes no duty to warn of obvious dangers on the property.” (Christoff v. Union Pacific Railroad Co. (2005) 134 Cal.App.4th 118, 126.)
Defendant argues that the gate was not an unreasonably dangerous condition because it had (1) diagonal yellow caution lines in the parking lot leading to the vehicular exit; (2) white, bold letters on both sides of the parking lot exit stating “NOT A WALKWAY”; (3) three yellow caution poles in line with the gate; (4) black and yellow caution tape on the gate itself which also states that it is “NOT A WALKWAY”; and (5) two red signs on each side of the gate which face the street and state “DO NOT ENTER.” (Defendant’s Undisputed Material Fact (“UMF”) No. 13.) The existence of these items is not disputed and shown in the photographs submitted by the parties. Rather than walk on the pedestrian walkway, Plaintiff decided to walk through the parking lot. She believes she saw a car in front of her exiting the parking lot but did not pay much attention. She knew she was walking in an area of the parking lot where vehicles could exist through a parking gate. Plaintiff does not dispute these facts.
Based on these undisputed material facts, the Court concludes Defendant has met its initial burden of showing the condition was open and obvious, was not unreasonably dangerous, and contained adequate warnings. The burden shifts to Plaintiff to show a triable issue of material fact exists.
Plaintiffs argue the gate was dangerous because the operating speed of the gate was too fast, the warning signs were inconspicuous, and there was improper and visually confusing hatching. In support, Plaintiff submits the expert declaration of Mark J. Burns. Mark Burns opines that the parking lot gate was visually confusing and that the painted pavement surrounding the subject arm gate was improper. He states that the warning “NOT A WALKWAY” and bright yellow lines were not sufficient to warn a pedestrian not to walk in the driveway, and the other warning signs were too small.
Burns’ conclusions are not supported by the evidence. The photographs attached to his report show a gate arm blocking the portion of the drive way, indicating clearly pedestrians should not walk through that portion of the driveway. Also on either side of the gate arm, “NOT A WALKWAY” is stenciled on the pavement in large clear letters. A chain blocks the other part of the driveway, again clearly signaling pedestrians should not go through the driveway. That Plaintiff contends she was hit on the head by the gate arm coming down, and that she saw a car exiting in front of her, means that a car must have triggered the gate and exited just before Plaintiff walked through the driveway. These facts also indicated that the driveway was for cars, not pedestrians. Thus, Burns’ conclusion that a Plaintiff could have been confused by the yellow lines on the pavement into thinking that the driveway was a walkway is not supported by the evidence.
Plaintiffs have failed to show a triable issue of material fact exists as to the open and obvious nature of the driveway and parking lot gate and the adequacy of the warnings to pedestrians not to walk through the driveway. No reasonable person would conclude the driveway and gate arm created a substantial risk of injury when they were used with due care in a manner which is reasonably foreseeable that they would be used, i.e., by a car exiting the parking lot and not by a person walking through the driveway in violation of the “NOT A WALKWAY” warning.
In light of the foregoing, the Motion for summary judgment is GRANTED.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative.