This case was last updated from Los Angeles County Superior Courts on 06/30/2019 at 01:43:26 (UTC).

PEDRO LOPEZ VS VALLARTA FOOD ENTERPRISES INC

Case Summary

On 04/12/2018 a Personal Injury - Other Personal Injury case was filed by PEDRO LOPEZ against VALLARTA FOOD ENTERPRISES INC in the jurisdiction of Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1600

  • Filing Date:

    04/12/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Petitioner and Plaintiff

LOPEZ PEDRO

Respondents and Defendants

VALLARTA FOOD ENTERPRISES INC.

DOES 1 TO 25

 

Court Documents

PROOF OF SERVICE SUMMONS

4/24/2018: PROOF OF SERVICE SUMMONS

ASSIGNED TO THE HONOABLE ELAINE LU DEPARTMENT 5 VALLARTA FOOD ENTERPRISES INC.S DEMAND FOR JURY AND NOTICE OF DEPOSIT OF JURY FEES

5/23/2018: ASSIGNED TO THE HONOABLE ELAINE LU DEPARTMENT 5 VALLARTA FOOD ENTERPRISES INC.S DEMAND FOR JURY AND NOTICE OF DEPOSIT OF JURY FEES

ANSWER TO COMPLAINT

5/23/2018: ANSWER TO COMPLAINT

CIVIL DEPOSIT

5/23/2018: CIVIL DEPOSIT

STIPULATION TO PERMIT PLAINTIFF TO FILE A FIRST AMENDED COMPLAINT;

9/21/2018: STIPULATION TO PERMIT PLAINTIFF TO FILE A FIRST AMENDED COMPLAINT;

FIRST AMENDED COMPLAINT FOR DAMAGES 1. NEGLIGENCE 2. PREMISES LIABILITY

9/21/2018: FIRST AMENDED COMPLAINT FOR DAMAGES 1. NEGLIGENCE 2. PREMISES LIABILITY

Answer

6/20/2019: Answer

SUMMONS

4/12/2018: SUMMONS

COMPLAINT FOR DAMAGES 1. NEGLIGENCE 2. PREMISES LIABILITY

4/12/2018: COMPLAINT FOR DAMAGES 1. NEGLIGENCE 2. PREMISES LIABILITY

 

Docket Entries

  • 06/20/2019
  • Answer (to First Amended Complaint); Filed by Vallarta Food Enterprises, Inc. (Defendant)

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  • 09/21/2018
  • Complaint (1st Amended Complaint for Damages 1. Negligence 2. Premises Liability); Filed by Pedro Lopez (Plaintiff)

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  • 09/21/2018
  • STIPULATION TO PERMIT PLAINTIFF TO FILE A FIRST AMENDED COMPLAINT;

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  • 09/21/2018
  • FIRST AMENDED COMPLAINT FOR DAMAGES 1. NEGLIGENCE 2. PREMISES LIABILITY

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  • 09/21/2018
  • STIPULATION TO PERMIT PLAINTIFF TO FILE A FIRST AMMENDED COMPLAINT; [PROPOSED ORDER]; Filed by Pedro Lopez (Plaintiff)

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  • 05/23/2018
  • Demand for Jury Trial; Filed by Vallarta Food Enterprises, Inc. (Defendant)

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  • 05/23/2018
  • ASSIGNED TO THE HONOABLE ELAINE LU DEPARTMENT 5 VALLARTA FOOD ENTERPRISES INC.S DEMAND FOR JURY AND NOTICE OF DEPOSIT OF JURY FEES

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  • 05/23/2018
  • CIVIL DEPOSIT

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  • 05/23/2018
  • ANSWER TO COMPLAINT

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  • 05/23/2018
  • Receipt; Filed by Vallarta Food Enterprises, Inc. (Defendant)

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  • 05/23/2018
  • Answer; Filed by Vallarta Food Enterprises, Inc. (Defendant)

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  • 04/24/2018
  • PROOF OF SERVICE SUMMONS

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  • 04/24/2018
  • Proof-Service/Summons; Filed by Pedro Lopez (Plaintiff)

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  • 04/12/2018
  • COMPLAINT FOR DAMAGES 1. NEGLIGENCE 2. PREMISES LIABILITY

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  • 04/12/2018
  • SUMMONS

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  • 04/12/2018
  • Complaint; Filed by Pedro Lopez (Plaintiff)

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Tentative Rulings

Case Number: BC701600    Hearing Date: February 03, 2020    Dept: 32

 

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 5

pedro lopez ,

Plaintiff,

v.

vallarta food enterprises, inc.,

Defendant.

Case No.: BC701600

Hearing Date: February 3, 2020

[TENTATIVE] order RE:

MOTION FOR SUMMARY JUDGMENT

Background

Plaintiff Pedro Lopez (“Plaintiff”) allegedly sustained injuries when he slipped and fell in a puddle of water on the floor of a market owned and operated by Defendant Vallarta Food Enterprises, Inc. (“Defendant”). Plaintiff asserts causes of action for negligence and premises liability. Defendant moved for summary judgment on Plaintiff’s complaint, which the Court granted. Now, Plaintiff moves for a new trial, which is effectively a motion for reconsideration. The Court denies Plaintiff’s motion as moot because the Court has elected to reconsider its ruling on its own motion for reconsideration. The Court grants its own motion for reconsideration, vacates its order of December 11, 2019 granting summary judgment, and denies Defendant’s motion for summary judgment.

LEGAL STANDARD

The Court has inherent authority to reconsider any of its own rulings on its own motion provided that it gives the parties notice and a reasonable opportunity to litigate the issue. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1096-1109.) Plaintiff’s motion provides sufficient notice of the issues the Court will reconsider, and Defendant did not request a continuance of the hearing on this motion.

“[T]he 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[.]  There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  “[T]he 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; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact.”  (Ibid.)  In ruling on the motion, “the court may not weigh the plaintiff's evidence or inferences against the defendant[’s] as though it were sitting as the trier of fact.”  (Id. at 856.)  However, the court “must . . . determine what any evidence or inference could show or imply to a reasonable trier of fact.”  (Ibid., emphasis original.)  

OBJECTIONS

Defendant’s Objection to Plaintiff’s Counsel’s Deposition Questions – Sustained on the following grounds: (1) The first question was withdrawn by Plaintiff’s counsel per Code of Civil Procedure section 2025.620(e); (2) The first question was leading per Evidence Code section 767(a)(1); and (3) The first and second questions were asked and answered and therefore was cumulative per Evidence Code sections 765 and 352.

Defendant’s Objection to Plaintiff’s Declaration – Sustained because Plaintiff cannot advance a declaration in opposition to summary judgment to contradict his deposition testimony. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522.)

The Court need not rule on Plaintiff’s objections, as the Court did not rely on that evidence in ruling on the motion. (Code Civ. Proc. § 437c(q).)

DISCUSSION

Defendant moved for summary judgment on Plaintiff’s complaint for negligence and premises liability. The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages.  (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.)  Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm.  (Annocki

Defendant argued that the allegedly dangerous condition—the puddle of water—was open and obvious. “[I]f the danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty unless harm was foreseeable despite the obvious nature of the danger.” (Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 122, citing 6 Witkin, Summary of Cal. Law (9th ed.) Torts, § 930, p. 301.) “Generally, if a danger is so obvious that a person could reasonably be expected to see it, the condition itself serves as a warning, and the landowner is under no further duty to remedy or warn of the condition. In that situation, owners and possessors of land are entitled to assume others will perceive the obvious and take action to avoid the dangerous condition.” (Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 447, citations and internal quotations omitted).

In support of its argument, Defendant argued that Plaintiff testified that he saw the water on which he slipped.

Q: Okay. Did you see the large circle of water as you were walking toward the meat department?

A: Yes.

. . .

Q: As you were walking parallel to the meat section or at any point prior to falling did you see the puddle of water which you ultimately slipped on?

A: That’s correct.

(Declaration of Matt D. Derossi, Exh. G, pp. 36-37.) This testimony satisfies Defendant’s burden, shifting the burden to Plaintiff to proffer sufficient evidence to create a triable issue.

In opposing the motion, Plaintiff relied upon his counsel’s attempts to rehabilitate him during the deposition but the questions were objectionable:

Q: As you were walking parallel to the meat department and just prior to slipping and falling, you did not see the puddle of water on the floor; correct?

Mr. Derossi: Objection. Leading. Asked and answered already.

A: No, I did not see it.

Q: Okay, I’ll rephrase the question. As you were walking parallel to the meat section or at any point prior to falling did you see the puddle of water which you ultimately slipped on.

Mr. Derossi: Objection. Asked and answered. The record will reflect his initial answer.

A: That’s correct.

The Court sustained Defendant’s objections to these questions as discussed. Regardless, the answer to the second question supports Defendant’s position that Plaintiff saw the water before he slipped. Plaintiff also proffered a declaration in which he stated: “I did not see the water on the floor before I fell because I was looking in the display cases.” (Declaration of Pedro Lopez, ¶ 13.) Plaintiff cannot advance a declaration in opposition to summary judgment to contradict his deposition testimony. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522.) Based upon this record, the Court granted summary judgment finding that the puddle was an open and obvious condition.

The Court now reconsiders that ruling on its own motion. Plaintiff argues that other portions of his testimony give rise to a triable issue whether Plaintiff saw the puddle of water before encountering it. For example, Plaintiff argues that he testified that he did not, in fact, see the puddle of water. But the cited portions of the deposition transcript reflect that he did not see “footprints on the floor where the water was.” (Fradkin Declaration, Exh. #1, at pp. 34-35.) Plaintiff cites portions of the transcript stating that he was looking at the meat display cases while he walked, but those portions do not state that he did not see the puddle before he fell. (Id., Exh. #1, at pp. 28-30.) Finally, Plaintiff testified that he saw the “mark of when [he] went into the water” when he “was already on the ground,” but that also does not state that he did not see the puddle before he fell. (Id., Exh. #1, at p. 36.) These are the same arguments Plaintiff’s counsel raised in opposition Defendant’s motion for summary judgment.

Regardless, the Court need not resolve the question whether this testimony gives rise to a triable issue because the Court grants its own motion on a different ground. At the time the Court ruled on the motion, Plaintiff’s theory of the case was unclear. In his written opposition and during oral argument, Plaintiff’s counsel focused almost exclusively on the puddle of water. Plaintiff’s counsel did not argue clearly that the existence of the grape precludes summary judgment based on an open and obvious dangerous condition. However, in Plaintiff’s responses to Defendant’s special interrogatories, Plaintiff made clear that his theory of the case was that “he slipped on a grape and liquid and fell backwards and landed on the left side of his body.” (Declaration of Igor Fradkin in Support of Motion for New Trial, Exh. #2, at p.4.) Although not a model of clarity, Plaintiff’s opposition to the motion for summary judgment states that he fell in a large puddle of water and there “appeared to be a grape skin in the area where he fell.” (Plaintiff’s Memorandum of Points and Authorities in Support of Opposition to Defendant’s Motion for Summary Judgment, at p.2.) Plaintiff did not abandon the claim in the separate statement when he did not dispute that he “does not know if he stepped on the grape.” (Plaintiff’s Response to Defendant’s Separate Statement of Undisputed Material Facts, ¶ 15.) Although the puddle of water may be an open and obvious condition, the grape is not.

The Court considered denying its own motion (and Plaintiff’s motion for new trial) because Plaintiff did not make the argument over the grape sufficiently clear in the opposition or during the oral argument on the motion. “Judges are not like pigs, hunting for truffles buried in briefs [or the record].” (See United States v. Dunkel (1991) 927 F.2d 955, 956.) Nevertheless, the Court grants its own motion to prevent the injustice of Plaintiff being deprived of a trial when there is, in fact, a triable issue based upon the existence of the grape.

CONCLUSION AND ORDER

The Court grants its own motion for reconsideration. The Court vacates its order of December 11, 2019, and denies Defendant’s motion for summary judgment. The Court reinstates the final status conference and trial dates as follows:

Final Status Conference: April 2, 2020, at 10:00 a.m.

Trial: April 15, 2020, at 8:30 a.m.

The discovery and motions cut-off shall be based on the trial date. The Court denies Plaintiff’s motion for new trial as moot. The Court’s clerk shall provide notice.

DATED: February 3, 2020 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC701600    Hearing Date: December 11, 2019    Dept: 5

Superior Court of California

County of Los Angeles

Spring Street Courthouse, Department 5

pedro lopez ,

Plaintiff,

v.

vallarta food enterprises, inc.,

Defendant.

Case No.: BC701600

Hearing Date: December 11, 2019

[TENTATIVE] order RE:

MOTION FOR SUMMARY JUDGMENT

Background

Plaintiff Pedro Lopez (“Plaintiff”) allegedly sustained injuries when he slipped and fell in a puddle of water on the floor of a market owned and operated by Defendant Vallarta Food Enterprises, Inc. (“Defendant”). Plaintiff asserts causes of action for negligence and premises liability. Defendant now moves for summary judgment on Plaintiff’s complaint, which Plaintiff opposes.

I. Defendant’s Argument

In support of its argument, Defendant argues that Plaintiff testified that he saw the water on which he slipped.

Q: Okay. Did you see the large circle of water as you were walking toward the meat department?

A: Yes.

. . .

Q: As you were walking parallel to the meat section or at any point prior to falling did you see the puddle of water which you ultimately slipped on?

A: That’s correct.

(Declaration of Matt D. Derossi, Exh. G, pp. 36-37.) This testimony satisfies Defendant’s burden, shifting the burden to Plaintiff to proffer sufficient evidence to create a triable issue.

II. Plaintiff’s Argument

Some of Plaintiff’s evidence is objectionable. Defendant’s objection to Plaintiff’s Counsel’s deposition questions may be sustained because: (1) The first question was withdrawn by Plaintiff’s counsel per Code of Civil Procedure section 2025.620(e); (2) The first question was leading per Evidence Code section 767(a)(1); and (3) The first and second questions were asked and answered and therefore was cumulative per Evidence Code sections 765 and 352. Defendant’s objection to Plaintiff’s declaration may be sustained because a plaintiff cannot advance a declaration in opposition to summary judgment to contradict his deposition testimony. (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522.)

However, during his deposition, Plaintiff also testified in a manner suggesting that he did not see the puddle before he fell:

Q: Okay. And what happened when you reached the meat department?

A: On the left-hand side you start having like meat display cases. And as I was walking up, I was looking at the display cases. And as I went to teach for -- for a number, I felt my right leg gave way. It split so far away that I tried to hold myself on with my left foot to know [sic] avail.

Q: So you fell to the ground?

A: Yes, yes.

(Declaration of Matt D. Derossi, Exh. G, at p. 28.) Plaintiff also testified as follows:

Q: When you saw the water, did you see any footprints on the floor where the water was?

A: No, no, no, no. I -- I mean, I did not see it.

(Declaration of Igor Fradkin, Exh. #1, pp. 34-35.)

The Court posts no tentative order. The parties should be prepared to address the deposition testimony. Any party who does not appear at the hearing shall waive their right to be heard and shall submit to any decision the Court makes on this motion.

DATED: December 11, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court