On 03/15/2017 MARIA PARRA SARIANANA filed a Personal Injury - Other Personal Injury lawsuit against HONG HOLDINGS LLC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE and AMY D. HOGUE. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
LAURA A. SEIGLE
AMY D. HOGUE
SARIANANA MARIA PARRA
DOES 1 TO 50
HONG HOLDINGS LLC
WESTERN REFINING RETAIL LLC
SALEH HUSSIN ESQ.
LEE HANNAH CHEEYON
COLMAN JONATHAN H. ESQ.
4/4/2017: PROOF OF SERVICE SUMMONS
8/31/2018: DEFENDANTHONG HOLDING LLC'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
8/31/2018: DECLARATION OF FERNANDA OCAMPO IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
8/31/2018: DECLARATION OF JOHN BRAULT, MS, IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION
8/31/2018: DEFENDANT HONC HOLDING LLC'S NOTICE OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION
8/31/2018: DEFENDANTHONG HOLDING LLC'S NOTICE OF REQUEST AND REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT, OR ALTERNATIVELY, SUMMARY ADJUDICATION
10/29/2018: Minute Order
12/17/2018: Ex Parte Application
1/17/2019: Motion for Leave
2/5/2019: Proof of Personal Service
Answer; Filed by Western Refining Retail, LLC (Defendant)Read MoreRead Less
at 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Continued - StipulationRead MoreRead Less
at 08:30 AM in Department 4B, Laura A. Seigle, Presiding; Jury Trial - Not Held - Continued - StipulationRead MoreRead Less
[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Hong Holdings, LLC (Defendant)Read MoreRead Less
Minute Order ( (Jury Trial; Final Status Conference)); Filed by ClerkRead MoreRead Less
at 10:00 AM in Department 4B, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Continued - Court's MotionRead MoreRead Less
Minute Order ( (Final Status Conference)); Filed by ClerkRead MoreRead Less
Amendment to Complaint (Fictitious/Incorrect Name); Filed by Maria Parra Sarianana (Plaintiff)Read MoreRead Less
Notice of Ruling; Filed by Maria Parra Sarianana (Plaintiff)Read MoreRead Less
at 1:30 PM in Department 4B, Laura A. Seigle, Presiding; Hearing on Motion for Leave to Amend (Complaint) - Held - Motion GrantedRead MoreRead Less
[Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Defendant/RespondentRead MoreRead Less
DEMAND FOR TRIAL BY JURY ON BEHALF OF DEFENDANT HONG HOLDINGS LLCRead MoreRead Less
Demand for Jury Trial; Filed by Hong Holdings, LLC (Defendant)Read MoreRead Less
ANSWER TO COMPLAINT ON BEHALF OF DEFENDANT HONG HOLDINGS LLCRead MoreRead Less
Answer; Filed by Hong Holdings, LLC (Defendant)Read MoreRead Less
Proof-Service/Summons; Filed by Maria Parra Sarianana (Plaintiff)Read MoreRead Less
PROOF OF SERVICE SUMMONSRead MoreRead Less
COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)Read MoreRead Less
Complaint; Filed by Maria Parra Sarianana (Plaintiff)Read MoreRead Less
SUMMONSRead MoreRead Less
Case Number: BC654247 Hearing Date: February 20, 2020 Dept: 27
[TENTATIVE] ORDER RE: DEEFENDANT HONG HOLDINGS LLC’S MOTION FOR SUMMARY JUDGMENT
On March 15, 2017, Plaintiff Maria Parra Sarinana (“Plaintiff”) filed this action against Defendant Hong Holdings LLC (“Defendant”) for premises liability and negligence relating to a February 29, 2016 slip and fall.
On February 29, 2016, shortly before 7:15 p.m., Plaintiff pulled her vehicle into a Shell gas station and parked in front of gas pump #5. (Undisputed Material Fact “UMF” Nos. 1, 3.) At that time, a video surveillance system recorded the premises including pump #5. (UMF No. 2.) Two vehicles—a silver sedan (“First Vehicle”) and then a white sedan (“Second Vehicle”)—used pump #5 immediately before Plaintiff. (UMF Nos. 5, 6, 8.) According to the surveillance video, the owner of the Second Vehicle spilled gasoline onto the ground in front of or near pump #5 and then drove away without telling anyone about the spill. (UMF Nos. 10-12.) No other person used pump #5, and no other person walked near or around pump #5, before Plaintiff drove up and parked at pump #5. (UMF Nos. 12, 13.) Approximately one minute and seven seconds after the Second Vehicle pulled away, Plaintiff drove up and parked in front of pump #5. (UMF No. 14.) Plaintiff alleges she slipped and fell onto the ground while attempting to fill her vehicle with gas. (UMF No. 16.)
Defendant moved for summary judgment with a hearing on January 8, 2019, based on Plaintiff’s inability to show Defendant had notice of the dangerous condition of the dripped substance on the ground. Plaintiff argued in opposition that the dripped substance was not the only dangerous condition, that the floor itself constituted a dangerous condition because it was unreasonably slippery, and that the pump was not functioning properly. The complaint, however, did not allege the floor and pump as dangerous conditions. At the January 8, 2019 hearing, Plaintiff’s counsel stated Plaintiff wished to amend the complaint to allege those additional dangerous conditions. Accordingly, the Court continued the hearing to February 14, 2019.
On January 17, 2019, Plaintiff filed a motion for leave to amend the complaint, to be heard on February 14. On February 14, the Court granted the motion for leave to amend and took the motion for summary judgment off calendar. The Court ordered that Plaintiff was to file the amended complaint within five days. Plaintiff never did that, although the parties have been litigating over the last year as if Plaintiff had filed the amended complaint. Plaintiff is ordered to file the amended complaint immediately.
The amended complaint alleged, “Negligent acts and omissions include, but are not limited to 1.) Defendants . . . created and had notice of the condition and failed to adequately warn of liquid spilled on Defendants’ premises. 2.) Defendants . . . failed to properly maintain the surrounding gas pumps on the premises and negligently allowed gasoline to spill and create a dangerous condition. 3.) Defendants . . . were on notice and allowed the existence of an unreasonably slippery floor on the premises.”
On September 18, 2019, Defendant filed another motion for summary judgment. The Court continued the hearing date to allow Plaintiff to take additional discovery. Plaintiff filed her opposition several days late and failed to comply with Code of Civil Procedures section 1005, subdivision (c) requiring service by means reasonably calculated to ensure delivery to the other party not later than the close of the next business day. Therefore, the Court continued the hearing on the motion again to allow Defendant additional time to file reply papers.
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.)
“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 Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)
“[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.)
III. EVIDENTIARY OBJECTIONS
Plaintiff’s Evidentiary Objections to the Declaration of Fernanda Ocampo:
Objection No. 1 is OVERRULED.
Objection No. 2 is SUSTAINED.
Plaintiff’s Evidentiary Objections to the Declaration of John Brault, MS:
Objection Nos. 3-5 are OVERRULED as the content attested to is not in genuine dispute, as shown by the separate statements of undisputed facts.
Defendant’s Evidentiary Objections to the Declaration of Eris J. Barillas:
Objection Nos. 1-8 are OVERRULED.
Defendant’s Evidentiary Objections to the Declaration of Brad P. Avrit:
Objection Nos. 1, 2, 3, 19 are OVERRULED.
Objection Nos. 4-18 are SUSTAINED.
Defendant’s Objections to Plaintiff’s “Improperly Obtained Evidence”:
Defendant objects to evidence obtained by Plaintiff during an allegedly unauthorized site inspection on December 11, 2018. The gas station was accessible by the public, and Plaintiff’s lack of notice to Defendant that Plaintiff’s expert would be at the gas station conducting an inspection of areas readily accessible to the general public is not sufficient grounds to exclude the evidence.
Plaintiff alleges causes of action for premises liability and negligence against Defendant. 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.) 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.) For example, 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].) “The plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence.” (Ortega, supra, 26 Cal.4th at p. 1206.)
“The exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, because, obviously, it varies according to the circumstances.” (Louie v. Hagstrom’s Food Stores (1947) 81 Cal.App.2d 601, 608.) Typically, the question of whether a condition existed so long as to be discoverable within a reasonable time is a question of fact to be decided by the jury. (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 807; Tuttle v. Crawford (1936) 8 Cal.2d 126, 130; Rothschild v. Fourth & Market St. Realty Co. (1934) 139 Cal.App. 625, 627.) However, if there is no substantial evidence from which it can be reasonably inferred that the condition existed for a sufficient period of time to charge the defendant with constructive notice of its presence and to remedy the condition, a defendant may be entitled to judgment as a matter of law. (Perez v. Ow (1962) 200 Cal.App.2d 559, 562.)
Defendant moves for summary judgment on grounds Plaintiff cannot show it had notice of the dangerous conditions. First, Defendant argues the spilled gasoline existed for an insufficient amount of time for Defendant to have discovered and remedied it in the exercise of reasonable care. The only evidence of how long the spilled gasoline existed is the surveillance footage, which shows the owner of the Second Vehicle spilling gasoline in front of pump #5, then getting into the car, and driving away. One minute and seven seconds later, Plaintiff pulls up in her vehicle, parks in front of pump #5, and then slips and falls as she attempts to fill her vehicle with gas. Defendant argues one minute and seven seconds is not sufficient time to have reasonably discovered and remedied the condition.
Plaintiff argues Defendant has not met its burden because it has failed to negate actual or constructive notice. Plaintiff contends Defendant must show its employee did not observe the gasoline on the floor. Plaintiff argues that at the time of the incident, Michael Figueroa Morales was the cashier at the gas station. (Plaintiff’s Additional Facts “AF” No. 33.) Employees of the gas station are to perform daily inspections of the fuel pumps on the premises and to visually inspect all areas of the premises for safety and tripping hazards two to three times per shift. (AF Nos. 35, 36.) The area where Plaintiff fell is visible from the cashier area, and there is a surveillance system with a video monitor located within the cashier area. (AF No. 37.) Therefore, Plaintiff argues Defendant knew or should have known of the presence of the spilled gasoline prior to Plaintiff’s arrival. (AF No. 38.)
Plaintiff’s assertion that Defendant must negate actual or constructive knowledge and prove its cashier did not observe the liquid spilling is incorrect. “The plaintiff has the burden to prove the owner had actual or constructive notice of the defect in sufficient time to correct it.” (Ortega, supra, 26 Cal.4th at p. 1203.) Plaintiff must show there was a triable issue of material fact as to whether Defendant had actual or constructive notice. “The decisive point of inquiry is the length of time the condition had existed.” (Perez, supra, 200 Cal.App.2d at p. 560.) In Girvetz, supra, the plaintiff slipped on a banana near the check out aisles with approximately fifteen employees within a radius of fifteen feet from the scene of the accident. (Girvetz, supra, 91 Cal.App.2d at p. 831.) The only evidence as to the length of time the banana was on the floor was the testimony of another shopper who stated she saw the banana on the floor approximately one-and-one-half minutes before Plaintiff slipped. (Id. at p. 828.) Absent evidence that the condition was caused by the defendant, the court could not reasonably infer from the circumstances that the dangerous condition had existed for such a length of time as to justify charging the defendant with lack of ordinary care. (Id. at p. 831.)
Defendant presented evidence that the driver who spilled the gasoline did not tell anyone about the spill before driving away. Plaintiff presented no contrary evidence that Defendant had actual knowledge of the spill. (Even though Defendant is not required to prove Morales did not observe the spill, Defendant’s Person Most Knowledgeable, Fernanda Ocampo, testified at her deposition that the monitors in the cashier area did not show the gas pumps and showed only the customers as they faced the cashier, the car wash, and the store back area. (Reply, Exh. A, Ocampo Depo., 66:13-67:10.)) Plaintiff presented no evidence that the owner of the Second Vehicle, or someone else, notified anyone at the gas station of the spill. It is undisputed Plaintiff arrived one minute and seven seconds after the Second Vehicle left. It cannot be inferred from these circumstances that Defendant had actual or constructive knowledge of the spill, or that the dangerous condition of spilled gasoline existed for such a length of time as to justify charging Defendant with lack of ordinary care in failing to discover and remedy the condition before Plaintiff was injured.
As to Plaintiff’s allegation of a defective gas pump nozzle, Defendant also contends there is no evidence that the nozzle was actually defective or that it had notice of a defective nozzle. Defendant cites to the declaration and deposition of Ocampo, an area supervisor employed by Defendant. She oversees management of Defendant’s gas stations. She testified that the manager of the gas station does a daily inspection of the gas pump nozzles. (UMF No. 33; Ocampo Depo. at 40:5-22, 49, 21-24.) She stated that no one had notified Defendant that the pump’s nozzle was defective or had malfunctioned immediately before or after the incident. (UMF 32; Ocampo Decl., ¶ 12.) Defendant has satisfied its initial burden of showing the lack of a defect in the nozzle.
Plaintiff did not dispute these facts. Plaintiff’s response to Defendant’s Separate Statement stopped at UMF No. 27 and did not respond to UMF Nos. 32 and 33. Plaintiff argues that Defendant stated in responses to document requests that it does not have possession of the maintenance binders. (AF 41.) Defendant also contends that based on the amount of gasoline spilled “it is most likely” the pump was not properly functioning. (AF 42.) Plaintiff bases this assertion on the declaration of Brad Avrit, who states, “Based on the amount of liquid gasoline spilled at the subject area prior to the subject incident, it is most likely that the subject gasoline pump was not properly functioning.” (Avrit Decl., ¶ 11.) He states that gasoline pumps have a mechanism intended to limit the gasoline that can be discharged “during typical operation as well as during an accidently [sic] discharge.” (Ibid.) He bases his conclusion that an excessive amount of gasoline was spilled on what he saw in the surveillance video. Plaintiff argues that based on the gasoline spilling onto the ground, it can be inferred that the nozzle was defective and was defective long enough that a person exercising reasonable care would have discovered it.
Although a plaintiff “‘is entitled to all favorable inferences that may be reasonably derived from [an expert’s] declaration’ [citation], and the ‘rule [is] that . . . we liberally construe the declarations for the plaintiff’s experts [citations]” . . . “these principles in no way eliminate the need for some form of ‘reasoned explanation,’ and it remains the case that any inferences must ‘reasonably be derived from’ the declaration.” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 782.) The expert’s opinion “must include ‘a reasoned explanation connecting the factual predicates to the ultimate conclusion.’ [Citation.]” (Ibid.) Here, Plaintiff’s expert does not present the factual predicates for his conclusions about how a gas pump is supposed to operate or for his conclusion that the nozzle at issue here was defective. He does not present evidence of expertise or experience in the operation and maintenance of gas pump nozzles. He does not state the factual predicates for his conclusions about how a gas pump and nozzle are supposed to operate. He does not state how much gasoline may end up being discharged accidently even from a properly working nozzle. He does not state how much gasoline was discharged in this incident. The deficient expert declaration does not allow a reasonable inference that the nozzle was defective simply because some amount of gasoline spilled on the ground.
Plaintiff contends that she needs a continuance to obtain the maintenance records in the position of another defendant, Andeavor Logistics, and to conduct another site inspection. Plaintiff has known since November 2018, when Defendant served responses to requests for production, that Andeavor Logistics has the maintenance records. (Saleh Decl., Exh. 9.) Plaintiff has had more than a year to obtain the records and does not show that she acted diligently. Plaintiff has had years to perform a site inspection. In addition, the Court previously continued the summary judgment hearing date to allow Plaintiff to obtain the discovery, and Plaintiff does not present good cause for not diligently pursing the discovery after the last continuance.
In sum, Plaintiff did not present admissible evidence to controvert Defendant’s evidence of the lack of a defect in the pump nozzle.
Plaintiff also alleges that the floor itself constituted a dangerous condition because it was unreasonably slippery. Defendant argues it had no notice that the floor was unreasonably slippery because no one had complained about the slipperiness of the floor. Defendant relies on Howard v. Omni Hotels Management Corp. (2012) 203 Cal.App.4th 403 for the assertion that Plaintiff cannot establish Defendant had notice because “Plaintiff cannot establish that another incident similar to Plaintiff’s occurred under substantially the same circumstances as present here.” (Motion, p. 11.) Plaintiff’s description of Howard misses an important point. In Howard, the defendant’s expert testified that the slippery bathtub at issue complied with industry standards for friction. (Howard, supra, 203 Cal.App.4th at p. 433.) That fact, along with the lack of prior substantially similar accidents, compelled the conclusion that the defendant lacked notice that the bathtubs were dangerously slippery. (Id. at p. 434.)
Defendant submitted no evidence that the flooring complied with industry standards for friction. Instead, Defendant relied solely on the lack of prior complaints. Lack of complaints alone does not establish lack of constructive knowledge as a matter of law. Defendant has not shown that it made any reasonable inspection of the flooring to discover whether the flooring when wet was dangerously unsafe. A jury could conclude that Defendant did not exercise due care by not conducting an inspection of the slipperiness of the floor material, and therefore Plaintiff may be able to demonstrate constructive notice. (Ortega, supra, 26 Cal.4th at p. 1212-1213). In sum, Defendant did not satisfy its burden of showing that Plaintiff cannot establish notice.
In light of the foregoing, the Motion for summary judgment is DENIED.
Moving party to give notice.
Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative.