MARGO MIGATZ VS WHOLE FOODS MARKET INC ET AL

Westwood Marketplace, LLC’s Motion for Summary Judgment, or in the alternative, Summary Adjudication 

Having considered the moving, opposing, and reply papers, the Court rules as follows.

BACKGROUND

On March 2, 2018, Plaintiff Margo Migatz (“Plaintiff”) filed a complaint against Whole Foods Market, Inc., Mrs. Gooch’s Natural Foods Markets, Inc. dba Whole Foods Market (“Whole Foods”) and Westwood Marketplace LLC (“Marketplace”) (collectively, “Defendants”) for: (1) negligence/premises liability, and (2) violations of the California Disabled Persons Acts (Civil Code ;; 54, 54.1, and 54.3.) Plaintiff alleges that on November 19, 2016, she was injured by a dangerous condition existing in the parking structure for Whole Foods. Plaintiff further alleges that Marketplace is the owner, landlord, lessor, and operator of the parking structure. 

On May 20, 2020, Marketplace filed a motion for summary judgment, or in the alternative, summary adjudication pursuant to California Code of Civil Procedure section 437c as to the entirety of Plaintiff’s first amended complaint. 

On June 15, 2020, Whole Foods filed a motion for summary adjudication pursuant to California Code of Civil Procedure section 437c as to the second cause of action. 

On January 19, 2021, Plaintiff dismissed the second cause of action with prejudice as to Whole Foods and Marketplace. 

The hearing on Marketplace’s motion was originally scheduled for August 6, 2020. The hearing was continued to January 25, 2021, and then, it was continued to January 27, 2021. 

The parties were ordered to adhere to a briefing schedule using the date of January 25, 2021. Plaintiff’s opposition was due on January 11, 2021, but the opposition was filed on January 13, 2021. On January 19, 2021, the Court granted Plaintiff’s ex parte application for relief from inadvertence and excusable neglect and leave to allow consideration of the late opposition. 

Trial is scheduled for December 13, 2021. 

PARTY’S REQUEST

Marketplace asks the Court to enter summary judgment against Plaintiff and in Marketplace’s favor on grounds that Marketplace did not owe Plaintiff a legal duty, and Plaintiff was not denied full and equal access.  

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.”  (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.)  “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the 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 “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.”  (Code Civ. Proc., ; 437c, subd. (p)(2).)  “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.”  (Id.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., ; 437c, subd. (c).)

DISCUSSION

Request for Judicial Notice

Marketplace requests the Court to take judicial notice of Plaintiff’s FAC. The Court grants the request but not as to any hearsay. (Evid. Code ; 452(d).)

Objections

Marketplace objects to the declaration of Michael B. Geibel, which was filed in support of Plaintiff’s opposition. The Court overrules the objections. 

Plaintiff objects to evidence submitted by Marketplace. However, Plaintiff raises such objections in her separate statement. The Court does not consider these objections. (Cal. Rules of Court, rule 3.1354(b).)

Motion for Summary Judgment

As Plaintiff dismissed her second cause of action against Marketplace, the Court’s analysis will only be as to her first cause of action for negligence/premises liability. 

Plaintiff alleges that on November 9, 2016, she parked her vehicle in a designated handicapped/disabled access parking space in the parking structure for Whole Foods (“Subject Area”), and she was subsequently injured by dangerous conditions at the Subject Area. (FAC, ¶ 5.) Next to Plaintiff’s parking space was an electric vehicle charging station, and the cables used to charge vehicles were on the ground in and adjacent to Plaintiff’s parking space. (FAC, ¶ 5.) Plaintiff tripped and fell over the cables and a camouflaged parking stop. (FAC, ¶ 5.) The location of Plaintiff’s parking space and the charging station, the length and positioning of the strewn cables, and the lighting of the parking structure, among other factors, created dangerous conditions and led to Plaintiff’s injuries. (FAC, ¶¶ 6-7.)

Plaintiff further alleges that Marketplace owed a duty to Plaintiff because it had ownership, possession, and/or control over the parking structure. (FAC, ¶¶ 1, 5-6.)

Duty is an essential element of a negligence claim. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.) Premises liability is a form of negligence. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) Therefore, duty is also an essential element of premises liability. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1159.) The existence of a legal duty is a question of law. (J.L. v. Children's Institute, Inc. (2009) 177 Cal.App.4th 388, 396.)

Civil Code section 1714 ;creates a duty. It provides: “(a) Everyone is responsible, not only for the result of his willful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person.”

An exception to this duty requires the balancing of several factors(1) the foreseeability of harm; (2) the degree of certainty plaintiff suffered injury; (3) the closeness of connection between the plaintiff’s injury and the landowner's conduct; (4) the moral blame attached to the landowner's conduct; (5) the policy of preventing future harm; (6) the burden on the landowner and the consequences to the community of imposing a duty on the landowner; and (7) the availability, cost, and prevalence of insurance for the risk. (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, citing Rowland v. Christian (1968) 69 Cal.2d 108, 112.)

In support of its motion, Marketplace provides the following evidence: 

Some of the alleged dangerous conditions did not exist in 2002, when Marketplace transferred possession of the Subject Area to Whole Foods pursuant to their lease agreement. (Cohen Decl., ¶ 12.) In 2002, Whole Foods exercised its option to assume complete and exclusive control over the Subject Area where Plaintiff’s injury occurred, and Marketplace’s interest in or access to the parking structure ended. (Marketplace’s Compendium, Exh. 2, pgs. 4-7, Section 2.2(c)(i) and (ii), Exh. 3; Cohen Decl., ¶¶ 9, 11; Plaintiff’s Decl., ¶ 8.) For example, the electrical charging stations were not installed until 2014, and they were installed by a non-party upon Whole Foods’ request. (Marketplace’s Compendium, Exh. 2, pgs. 4-7, Section 2.2(c)(ii), Exh. 3, 8; Cohen Decl., ¶ 11.)  In another example, the lighting in the parking structure was changed in 2012 by a non-party, also at Whole Foods’ request. (Exh. 4-5.)

Marketplace presents the above evidence to show that it had no duty to Plaintiff because it had no knowledge of any dangerous conditions in the Subject Area, as Whole Foods obtained exclusive control and possession of the space in 2002. (Resolution Trust Corp. v. Rossmoor Corp. (1995) 34 Cal.App.4th 93, 101 [“[B]efore liability may be thrust on a landlord for a third party's injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition”]; accord Leakes v. Shamoun (1986) 187 Cal.App.3d 772, 776-778.)

Marketplace also balances the Rowland factors to argue that no duty exists. Marketplace argues that the foreseeability of Plaintiff’s harm is murky because Marketplace played no role in the non-parties’ installation of charging stations or lights; there is no factual connection between Marketplace’s conduct and Plaintiff’s harm because Whole Foods had control over the installations subject to its contracts with the non-parties, and the parking structure was in lawful compliance; moral blame cannot be attached to Marketplace because it did not conduct the installations, and it had no control over the Subject Area; imposing liability on Marketplace would not advance the policy of preventing future harm and would be a heavy burden because Marketplace is a non-possessory landlord; and there exists the availability of insurance because Marketplace and Whole Foods have general liability insurance that serve to indemnify for losses resulting from their respective acts or omission, and Plaintiff has medical coverage for her medical damages. (Vasilenko v. Grace Family Church (2017) 3 Cal.5th 1077, citing Rowland v. Christian (1968) 69 Cal.2d 108, 112.)

Marketplace has met its burden. The burden shifts to Plaintiff. 

The sole issue is whether Marketplace owed a duty to Plaintiff. As such, the Court does not consider Plaintiff’s arguments regarding the existence of dangerous conditions. 

In support of her opposition, Plaintiff presents the following evidence: 

The parties’ lease agreement did not provide for Whole Foods to have the sole responsibility for inspecting and maintaining the Subject Area; rather, the agreement provided only for Whole Foods’ exclusive use and operation of the Subject Area for revenue from parking fees. (Marketplace’s Compendium, Exh. 2.) Plaintiff supports this argument by stating that Marketplace retained Paul Bishop to inspect the installation of the disabled parking space in 2015. (Bishop Decl., ¶¶ 5-8.)

Plaintiff provides the above evidence to show that Marketplace maintained its duty to exercise care, and that Marketplace did not delegate to Whole Foods the sole responsibility for the maintenance and safety of the Subject Area. (Mora v. Baker Commodities (1989) 210 Cal.App.3d 771, 781 [A commercial landowner cannot totally abrogate its landowner responsibilities merely by signing a lease, and as the owner of property, a lessor out of possession must exercise due care and must act reasonably toward the tenant as well as to unknown third persons]; Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619 [“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”].)

Plaintiff further argues that Marketplace had a nondelegable duty of ordinary care to maintain the parking structure in a safe condition. (Civ. Code ; 1714; Preston v. Goldman (1986) 42 Cal.3d 108, 119.) Given that Marketplace retained its duty, it breached that duty by failing to inspect and maintain the parking structure in a safe condition. 

Per the parties’ arguments, the Court analyzes the lease agreement to determine its meaning and effect. (Rodriguez v. Barnett (1959) 52 Cal.2d 154, 160 [the interpretation of a lease is not a “fact” but rather presents a purely legal issue for the Court].)

The agreement’s language and the parties’ conduct make clear that upon exercising the option, Marketplace no longer had access or control over the Subject Area.

On July 20, 2001, Marketplace and Whole Foods entered into a lease agreement, whereby Marketplace was the landlord and Whole Foods was the tenant. In relevant part, the lease granted Whole Foods with at least 90 parking spaces on the lower parking level, where Plaintiff’s injuries occurred. (Marketplace’s Compendium, Exh. 2, pg. 1, Section 1.1(b); FAC, ¶ 5.) Marketplace maintained access and control to the Subject Area, but that access and control was subject to Whole Foods’ reasonable oversight and approval. (Marketplace’s Compendium, Exh. 2, pgs. 4-6, section 2.2.) The agreement also granted Whole Foods an option to assume complete and exclusive control of the Subject Area. Upon exercising the option, Marketplace would have no further interest in or access to the Subject Area. (Marketplace’s Compendium, Exh. 2, pg. pgs. 4-7, section 2.2)

On November 26, 2002, Whole Foods exercised its option. Effective December 1, 2002, Whole Foods assumed the responsibility of operating and maintaining the Subject Area. (Marketplace’s Compendium, Exh. 3.)

Prior to the exercise of the option, Marketplace had the obligation of maintaining the Subject Area in safe condition. This obligation included providing adequate lighting. (Marketplace’s Compendium, Exh. 2, pg. 19, Section 6.4(a) and (b).) In 2012, after Whole Foods exercised the option, Whole Foods took on a project for the installation of lights and paid for the project. (Marketplace’s Compendium, Exh. 4-6.) In discovery, Whole Foods confirmed that it had exclusive control over the Subject Area. (Marketplace’s Compendium, Exh. 8, pg. 14, Response to FROG, No. 17.1.)

As to the 2015 inspection, Marketplace argues that the inspection does not change the above. As landlord, Marketplace retained its obligation to maintain the Subject Area compliant with the ADA. The Court accepts this argument. (Botosan v. Paul McNally Realty ;(9th Cir. 2000) 216 F.3d 827, 832-834.)

The Court finds that Plaintiff has not met her burden. 

Generally, a landlord’s liability is precluded “for injuries to his tenant or his tenant’s invitees from a dangerous condition on the premises which comes into existence after the tenant has taken possession. This is true even though the exercise of reasonable diligence the landlord might have discovered the conditions.” (Bisetti v. United Refrigeration Corp. ;(1985) 174 Cal.App.3d 643, 648.) Such is the rule because, “we have placed major importance on the existence of possession and control as a basis for tortious liability for conditions on the land.” (Preston v. Goldman ;(1986) 42 Cal.3d 108, 119.) “Thus, in addition to showing actual knowledge of a dangerous condition, an injured person ;must also show that the landlord had the right and ability to cure the condition.” (Leakes v. Shamoun ;(1986) 187 Cal.App.3d 772, 776.)

As discussed above, as of December 1, 2002, Marketplace had no interest in or access to the Subject Area, with the exception of the 2015 inspection. Given that it had no interest or access in the Subject Area, Marketplace lacked the right and ability to discover and cure any dangerous conditions in the Subject Area. 

As Marketplace had no control over the Subject Area, an analysis of the Rowland factors relieves Marketplace of any liability. For example, Marketplace’s ability to foresee any harm to Plaintiff was limited; as of 2002, Marketplace has not been able to control or access the Subject Area, meaning that there is no close connection between its conduct and Plaintiff’s injury; and given that lack of closeness, there is little to no moral blame attached to Marketplace. 

Continuance

Plaintiff requests that the hearing be postponed for 60 days to allow completion of depositions of the Persons Most Qualified of Marketplace and Whole Foods. For the reasons discussed in Marketplace’s reply, the Court denies the request. 

CONCLUSION

The motion is GRANTED. 

Moving Defendant is ordered to give notice of this ruling.

The parties are directed to the header of this tentative ruling for further instructions.