Pending - Other Pending
Personal Injury - Other Personal Injury
JON R. TAKASUGI
THE SALVATION ARMY
MEDEL GLORIA G. ESQ.
UYEJI-HISA KIMBERLY MARIKO
12/2/2019: Notice of Change of Address or Other Contact Information
9/10/2019: Substitution of Attorney
8/13/2019: Notice - NOTICE NOTICE OF CONTINUANCE OF HEARING ON MOTION FOR SUMMARY JUDGMENT
8/15/2019: Opposition - OPPOSITION PLAINTIFF MIRNA AMAYA'S OPPOSITION TO DEFENDANTS MOTION FOR SUMMARY JUDGMENT
8/15/2019: Separate Statement
8/19/2019: Ex Parte Application - EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DATES
8/20/2019: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED...)
8/20/2019: Order - ORDER ORDER RE: EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DATES
8/22/2019: Notice of Ruling
6/14/2019: Motion for Summary Judgment
6/14/2019: Separate Statement
12/19/2018: Notice - NOTICE OF ERRATA TO DEFENDANT THE SALVATION ARMY'S MOTION FOR SUMMARY JUDGMENT
12/6/2018: Motion for Summary Judgment - MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION
12/6/2018: Separate Statement
12/6/2018: Other - - OTHER - TABLE OF EVIDENCE IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE SUMMARY ADJUDICATION
12/6/2018: Declaration - DECLARATION OF GLORIA G. MEDEL IN SUPPORT OF MOTION
12/6/2018: Declaration - DECLARATION OF JENNIFER NOIBOONSOOK IN SUPPORT OF MOTION
3/13/2019: Ex Parte Application - EX PARTE APPLICATION EX PARTE APPLICATION TO CONTINUE TRIAL AND OTHER RELATED DATES, AND HEARING ON MOTION FOR SUMMARY JUDGMENT
Hearing06/29/2020 at 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Order to Show Cause Re: Dismissal[+] Read More [-] Read Less
Hearing05/06/2020 at 08:30 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Jury Trial[+] Read More [-] Read Less
Hearing04/23/2020 at 10:00 AM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Final Status Conference[+] Read More [-] Read Less
Hearing03/10/2020 at 13:30 PM in Department 3 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment[+] Read More [-] Read Less
DocketNotice of Change of Address or Other Contact Information; Filed by Mirna Amaya (Plaintiff)[+] Read More [-] Read Less
Docketat 08:30 AM in Department 3, Jon R. Takasugi, Presiding; Jury Trial - Not Held - Advanced and Continued - by Court[+] Read More [-] Read Less
Docketat 10:00 AM in Department 3, Jon R. Takasugi, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court[+] Read More [-] Read Less
Docketat 1:30 PM in Department 3, Jon R. Takasugi, Presiding; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Party[+] Read More [-] Read Less
DocketSubstitution of Attorney; Filed by The Salvation Army (Defendant)[+] Read More [-] Read Less
Docketat 1:30 PM in Department 3, Jon R. Takasugi, Presiding; Hearing on Motion for Summary Judgment - Not Held - Rescheduled by Court[+] Read More [-] Read Less
DocketPROOF OF SERVICE SUMMONS[+] Read More [-] Read Less
DocketDEFENDANT, THE SALVATION ARMY'S NOTICE OF POSTING JURY FEES[+] Read More [-] Read Less
DocketCIVIL DEPOSIT[+] Read More [-] Read Less
DocketAnswer; Filed by The Salvation Army (Defendant)[+] Read More [-] Read Less
DocketDEFENDANT, THE SALVATION ARMY'S ANSWER TO PLAINTIFF'S COMPLAINT AND DEMAND FOR JURY TRIAL[+] Read More [-] Read Less
DocketReceipt; Filed by The Salvation Army (Defendant)[+] Read More [-] Read Less
DocketNotice; Filed by The Salvation Army (Defendant)[+] Read More [-] Read Less
DocketComplaint; Filed by Mirna Amaya (Plaintiff)[+] Read More [-] Read Less
DocketSUMMONS[+] Read More [-] Read Less
DocketCOMPLAINT FOR NEGLIGENCE[+] Read More [-] Read Less
Case Number: ****7143 Hearing Date: July 13, 2020 Dept: 31
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
THE SALVATION ARMY, a CORPORATION, ET AL.,
CASE NO: ****7143
[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
July 13, 2020
I. Background and Summary of Ruling
Plaintiff, Mirna Amaya, alleges that Defendant, the Salvation Army, a California Corporation, managed and maintained its business and premises in such a negligent and careless manner that it caused a dangerous and hazardous condition on the subject premises that caused Amaya injuries. Amaya alleges that Salvation Army held certain sales events at the premises, which would have large numbers of customers gather at the entrance to Salvation Army’s store waiting for it to open so that they could aggressively rush into the store, and that Salvation Army was aware that a large crowd of customers would gather and aggressively rush forward to the entrance of the store in a dangerous and hazardous manner. Amaya alleges that on July 3, 2015, she was violently pushed and jostled by the crowd of customers who were aggressively and dangerously rushing into Salvation Army’s store when it opened, and that she fell to the ground as she was entering the store.
Salvation Army now moves for summary judgment arguing that Amaya cannot show that Salvation Army owed or breached a duty of care to Defendant. The court denies the motion because Amaya has shown disputed issues of fact as to whether there was a dangerous condition and whether Salvation Army was on notice of that condition.
II. Motion for Summary Judgment
Salvation Army argues that Amaya’s negligence cause of action fails because there was no dangerous and hazardous condition at Defendant’s store, as the undisputed evidence shows there was no unruly crowd at the store’s entrance, and there was no prior incident similar to that alleged by Amaya at the store. Salvation Army argues that Amaya admits that she has no evidence that any customer at Defendant’s store made physical contact with Amaya as she and other customers entered the store, so the incident did not occur because Salvation Army failed to provide crowd control measures. Further, Salvation Army contends that because it had no knowledge of any prior incidents and the accident was not foreseeable, it owed no duty of care to provide crowd control at the store. Salvation Army contends that the evidence shows it met the standard of care. Lastly, Salvation Army submits the declaration of its safety expert, Dr. Vardi, who opines that no act or omission by Salvation Army was a substantial factor in causing Amaya’s alleged accident.
Amaya argues that on Salvation Army’s frequent sale days, large and aggressive crowds congregate outside the store’s entrance, and a witness testified that over the 10 years he had been shopping at Salvation Army’s store, he saw at least two other people fall down because of the crowds that rush into the store when it opens. Amaya further contends that she has not admitted that she was not pushed, and that Salvation Army was aware of the danger posed by the large crowds, as after Amaya’s incident Amaya’s witness heard Salvation Army’s store manager admit that a lot of people had fallen going into the store. Amaya contends that Salvation Army failed to properly manage the crowded area, and that that failure was the proximate cause of Amaya’s injuries because if Salvation Army had monitored the crowd as it had a duty to do, the crowd would not have been permitted to rush or run into the store and Amaya would not have fallen.
c. Burdens on Summary Judgment
Summary judgment is proper “if all the papers submitted 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.” (Code Civ. Proc. ;437c(c).) Where a defendant seeks summary judgment or adjudication, he must show that either “one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action.” (Id. at ;437c(o)(2).) A defendant may satisfy this burden by showing that the claim “cannot be established” because of the lack of evidence on some essential element of the claim. (Union Bank v. Superior Court (1995) 31 Cal.App.4th 574, 590.) Once the defendant meets this burden, the burden shifts to the plaintiff to show that a “triable issue of one or more material facts exists as to that cause of action or defense thereto.” (Ibid.)
The moving party bears the initial burden to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at ;437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” Aguilar, supra, 25 Cal.4th at 865-66,
[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)
Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.) Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103.
Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at ;437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)
d. Law Governing Standard of Care
A store owner is not the insurer of its patrons’ personal safety but does owe patrons a duty to exercise reasonable care in keeping the premises reasonably safe. (Moore v. Wal–Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476, citing Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) As the California Supreme Court explained in Ortega, a store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers. (Id.) The care required is commensurate with the risks involved. Thus, for example, if the owner operates a self-service grocery store, where customers are invited to inspect, remove, and replace goods on shelves, the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed. The owner must safeguard against the possibility that such a customer may create a dangerous condition by disarranging or dropping the merchandise. (Id.) “‘However, the basic principle to be followed in all these situations is that the owner must use the care required of a reasonably prudent [person] acting under the same circumstances.’ “ (Id.)
To establish the owner’s liability on a negligence theory, the plaintiff must prove duty, breach, causation and damages. (Id.) “A plaintiff meets the causation element by showing that (1) the defendant's breach of its duty to exercise ordinary care was a substantial factor in bringing about plaintiff's harm, and (2) there is no rule of law relieving the defendant of liability. [Citation.] These are factual questions for the jury to decide, except in cases in which the facts as to causation are undisputed.” (Id.) To meet its burden of proof, a “‘Amaya must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.’ [Citation.]” (Id., at pp. 1205–1206.)
The critical issue here is whether Salvation Army had notice, either actual or constructive, of the dangerous condition of the premises in sufficient time to either correct it or warn patrons of its existence.
For a store owner to be liable for injuries to a business invitee caused by a dangerous condition on its premises, the owner must have actual or constructive notice of the dangerous condition. (Ortega, supra, 26 Cal.4th at p. 1203.) “[W]here the plaintiff relies on the failure to correct a dangerous condition to prove the owner's negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it.” (Id., at p. 1206.) “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. Knowledge may be shown by circumstantial evidence ‘which is nothing more than one or more inferences which may be said to arise reasonably from a series of proven facts.’ [Citation.] Whether a dangerous condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury.... [Citation.] The owner must inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it.” (Id., at pp. 1206–1207.) However, “speculation and conjecture with respect to how long a dangerous condition has existed are insufficient to satisfy a plaintiff's burden.”
e. Evidentiary Objections
In reply to Amaya’s opposition, Salvation Army submits three objections to the Deposition of Kenneth Scott attached to Amaya’s opposition. Salvation Army argues that the deposition transcript is not authenticated and objects that the relevant portions are hearsay, lack personal knowledge, are vague, ambiguous, uncertain, lack foundation are speculative. However, the deposition transcript is accompanied by a certification by the court reporter pursuant to Code Civ. Proc. ; 2025.540(a), and thus it is authenticated. Further, the relevant deposition testimony concerns events that Scott personally observed, and a statement purportedly made by Salvation Army’s store manager after the incident in this case occurred. Scott clearly has foundation to testify as to what he observed and the statement by the store manager is an admission. The objections are overruled.
f. Moving Defendant’s Burden to Show Lack of Actual or Constructive Notice of Dangerous Condition
Salvation Army contends that there is no evidence showing that it knew or had reason to know prior to Amaya’s alleged incident that another customer entering the store could push or bump her and cause her to fall as she was entering Defendant’s store, and thus, Salvation Army could not anticipate the alleged conduct. (UMF 3-6, 8-11.) In addition, Salvation Army submits the declaration of Dr. Vardi, which provides,
[I]n light of the number of customers (10 to 50) at the Antique Store on July 3, 2015 and the physical characteristics of the store, The Salvation Army was not required, as a reasonable retail business owner, to implement crowd control measures, absent any actual or constructive notice of such number of customers presenting a hazard or potential hazard to visitors. In the undisputed absence of prior reports of injuries claimed to be caused by the gathering of customers at regular sales, The Salvation Army has met the standard of care required of a reasonable retail business owner. (UMF 12-16.)
(Mot. at pp. 12-13:24-3.)
Salvation Army asserts that its evidence establishes that it did not breach any duty or standard of care to Amaya. Further, Salvation Army contends that Amaya has admitted that she was not pushed by another customer, and there is nothing that Salvation Army could have done to have avoided the alleged accident.
The foregoing is sufficient to meet the moving burden to establish Salvation Army lacked actual or constructive notice of the alleged dangerous condition. The burden therefore shifts to Amaya to raise a triable issue of material fact.
g. Burden to Raise Triable Issue of Material Fact
Amaya, in opposition, submits the deposition transcript of Kenneth Scott (“Scott”), who allegedly witnessed the incident, stating that over the 10 years he shopped at Defendant’s store, he witnessed at least two other people fall down because of crowds that rushed into the store when it opened. (Opp. UMF 19.) Scott states that he was at the store when Amaya fell, and that after Amaya fell, Defendant’s store manager admitted to Scott that a lot of people have fallen going in the store’s door. (Opp. UMF 20.) Further, Amaya asserts that Defendant’s employees were not supervising the crowd that rushed in on the day she fell, and that she has testified that she believes she was pushed by another customer. (Opp. UMF 21-22.) Moreover, Amaya argues that the entryway to Salvation Army’s store contributes to the danger to customers. (Opp. UMF 28.) Amaya contends that the evidence shows that Salvation Army knew of the danger posed by the crowds and entryway, and therefore had a duty to protect Amaya but failed to do so.
Amaya’s evidence raises triable issues of material fact concerning whether Salvation Army was aware of prior incidents involving customers falling going into the store, as Scott testified at his deposition that he has witnessed at least two people fall down going into the store within 10 years of the incident, and that Defendant’s manager admitted to Scott that a lot of people have fallen going through the door. (See Opp. Exh. A. Scott Depo. pp. 43-45:11-7.) This evidence raises a triable issue of material fact concerning whether Salvation Army was aware that the crowds going into the store posed a danger to customers. “‘(I)f the crowd is held * * * in a manner likely to cause injury, the storekeeper must use due care to guard against it. We think that evidence that the flow of a crowd collected by a defendant has been dammed, whether … in a store entry areaway * * *, without precautions—without barricades, warnings or guards—is evidence from which reasonable jurymen might properly find that * * * the defendant had invited the public and the plaintiff into danger, without exercising ordinary care to render the premises reasonably safe for the visit.’” (Martin v. Barclay Distributing Co. (1970) 13 Cal.App.3d 828, 834.)
Furthermore, Dr. Vardi provides,
Further, in my professional opinion, in light of the number of customers (10 to 50) and the physical characteristics of the Subject Property, The Salvation Army was not required, as a reasonable retail business owner, to implement crowd control measures, absent any actual or constructive notice of such number of customers presenting a hazard or potential hazard to visitors. If there were no prior reports of injuries claimed to be caused by the gathering of customers at regular sales, The Salvation Army has met the standard of care required of a reasonable retail business owner.
(Mot. Exh. 3, Vardi Decl. ; 14 (emphasis added).) There is conflicting evidence as to whether Salvation Army was in fact aware of prior incidents concerning crowds going into the store and customers falling. Thus, there is a triable issue of fact as to whether Salvation Army had actual or constructive notice of the alleged dangerous condition, and consequently, there is a question of fact as to whether Salvation Army had and breached a duty of care to Amaya. (Ortega, supra, 26 Cal.4th at p. 1203.)
Because Amaya raises triable issues of material fact concerning standard of care and causation, the motion for summary judgment is denied.
Salvation Army is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at email@example.com indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative. If the parties do not submit on the tentative, they should arrange to appear remotely.
Dated this 13th day of July, 2020
Hon. Thomas D. Long
Judge of the Superior Court
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