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This case was last updated from Los Angeles County Superior Courts on 06/14/2019 at 08:58:04 (UTC).

ROMIT RUSSOTA VS COSTCO WHOLESALE CORPORATION ET AL

Case Summary

On 06/12/2017 ROMIT RUSSOTA filed a Personal Injury - Other Personal Injury lawsuit against COSTCO WHOLESALE CORPORATION. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is CHRISTOPHER K. LUI. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****4601

  • Filing Date:

    06/12/2017

  • 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

Judge Details

Presiding Judge

CHRISTOPHER K. LUI

 

Party Details

Plaintiff and Petitioner

RUSSOTA ROMIT

Defendants and Respondents

DOES 1 THROUGH 100

COSTCO WHOLESALE CORPORATION

SUAREZ RUBEN

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

LIBMAN MICHAEL J.

FINE EDWARD S. ESQ.

LIBMAN MICHAEL JACOB

Defendant and Respondent Attorneys

MURCHISON & CUMMING LAW OFFICES OF

EILER JAMES OLNEY

 

Court Documents

Opposition

9/13/2018: Opposition

REPLY OF DEFENDANTS COSTCO WHOLESALE CORPORATION AND RUBEN SUAREZ TO PLAINTIFF'S OPPOSITION TO MOTION TO RECLASSIFY UNLIMITED CIVIL CASE TO LIMITED CIVIL CASE; ETC.

9/19/2018: REPLY OF DEFENDANTS COSTCO WHOLESALE CORPORATION AND RUBEN SUAREZ TO PLAINTIFF'S OPPOSITION TO MOTION TO RECLASSIFY UNLIMITED CIVIL CASE TO LIMITED CIVIL CASE; ETC.

Minute Order

9/26/2018: Minute Order

Ex Parte Application

10/31/2018: Ex Parte Application

Motion in Limine

3/21/2019: Motion in Limine

Motion in Limine

3/21/2019: Motion in Limine

Motion in Limine

3/21/2019: Motion in Limine

Minute Order

3/25/2019: Minute Order

Declaration

4/4/2019: Declaration

Notice of Ruling

4/5/2019: Notice of Ruling

Ex Parte Application

6/6/2019: Ex Parte Application

NOTICE OF POSTING OF JURY FEES;CIVIL DEPOSIT

6/12/2018: NOTICE OF POSTING OF JURY FEES;CIVIL DEPOSIT

Unknown

6/12/2018: Unknown

ANSWER OF DEFENDANT COSTCO WHOLESALE CORPORATION TO COMPLAINT OF PLAINTIFF ROMIT RUSSOTA

8/3/2017: ANSWER OF DEFENDANT COSTCO WHOLESALE CORPORATION TO COMPLAINT OF PLAINTIFF ROMIT RUSSOTA

DEMAND FOR JURY TRIAL AND NOTICE OF POSTING JURY FEES

8/3/2017: DEMAND FOR JURY TRIAL AND NOTICE OF POSTING JURY FEES

PROOF OF SERVICE SUMMONS

9/25/2017: PROOF OF SERVICE SUMMONS

Unknown

9/29/2017: Unknown

DEMAND FOR JURY TRIAL AND NOTICE OF POSTING JURY FEES

9/29/2017: DEMAND FOR JURY TRIAL AND NOTICE OF POSTING JURY FEES

25 More Documents Available

 

Docket Entries

  • 06/06/2019
  • at 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Hearing on Ex Parte Application (order for a short continue of trial and expert discovery deadlines only;) - Held - Motion Granted

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  • 06/06/2019
  • Ex Parte Application (order for a short continue of trial and expert discovery deadlines only;); Filed by Romit Russota (Plaintiff)

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  • 06/06/2019
  • Minute Order ( (Plaintiff's Ex Parte Application order for a short continue o...)); Filed by Clerk

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  • 04/30/2019
  • at 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Jury Trial - Not Held - Advanced and Continued - by Court

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  • 04/23/2019
  • at 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 04/15/2019
  • at 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 04/05/2019
  • at 08:30 AM in Department 4A, Christopher K. Lui, Presiding; Hearing on Ex Parte Application (To Continue Trial and all related trial deadlines) - Held - Motion Granted

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  • 04/05/2019
  • Minute Order ( (Plaintiff's Ex Parte Application To Continue Trial and all re...)); Filed by Clerk

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  • 04/05/2019
  • Notice of Ruling; Filed by Costco Wholesale Corporation (Defendant)

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  • 04/05/2019
  • Ex Parte Application (To Continue Trial and all related Trial Deadlines); Filed by Romit Russota (Plaintiff)

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40 More Docket Entries
  • 08/03/2017
  • DEMAND FOR JURY TRIAL AND NOTICE OF POSTING JURY FEES

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  • 08/03/2017
  • Receipt; Filed by Costco Wholesale Corporation (Defendant)

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  • 08/03/2017
  • Demand for Jury Trial; Filed by Costco Wholesale Corporation (Defendant)

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  • 08/03/2017
  • CIVIL DEPOSIT

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  • 08/03/2017
  • Answer; Filed by Costco Wholesale Corporation (Defendant)

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  • 07/06/2017
  • PROOF OF SERVICE SUMMONS

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  • 07/06/2017
  • Proof of Service (not Summons and Complaint); Filed by Romit Russota (Plaintiff)

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  • 06/12/2017
  • Complaint; Filed by Romit Russota (Plaintiff)

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  • 06/12/2017
  • SUMMONS

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  • 06/12/2017
  • COMPLAINT FOR: 1. PREMISES LIABILITY; 2. NEGLIGENCE; ETC

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Tentative Rulings

Case Number: BC664601    Hearing Date: January 25, 2021    Dept: 28

Motion for Summary Judgment, or in the Alternative, Summary Adjudication

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

BACKGROUND

This is a premises liability action.

On June 12, 2017, Plaintiff Romit Russota (“Plaintiff”) filed a complaint against Defendants Costco Wholesale Corporation (“Defendant”) and Ruben Suarez. Plaintiff alleges premises liability and negligence in the compliant for a slip-and-fall that occurred on January 17, 2016.

On November 14, 2019, the Court dismissed Defendant Ruben Suarez with prejudice.

On April 3, 2020, Defendant filed a motion for summary judgment, or in the alternative, summary adjudication.

On July 23, 2020, this matter came for hearing before the Court. Defendant was ordered to refile and reserve the papers as the proof of service reflected an incorrect address for pro per Plaintiff. 

On August 7, 2020, Defendant refiled and reserved its motion.

The motion’s original hearing date was continued by the Court on October 27, 2020 to January 25, 2021.

On January 7, 2021, Plaintiff filed her opposition

On January 20, 2021, Defendant filed a reply.

Trial is set for June 18, 2021.

MOVING PARTYS REQUESTS

Defendant asks the Court to grant summary judgment, or in the alternative, summary adjudication against Plaintiff and in Defendant’s favor for three reasons. First, the dangerous condition Plaintiff alleges caused Plaintiff’s injuries did not exist. Second, Plaintiff’s own actions caused Plaintiff’s harm. Third, Defendant did not have notice of the alleged dangerous condition.

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.” (Ibid.) “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).)

OBJECTIONS

Defendant objects to all of Plaintiff’s exhibits filed in opposition, i.e., Exhibits J-M. 

The Court SUSTAINS the objection to Exhibit K because there is no foundation or authentication.

Although the remaining objections are not material to the Court’s disposition of this motion and therefore the Court does not need to rule on them (Code Civ. Proc., § 437c, subd. (q).), the Court SUSTAINS them as well for the same reasons.

DISCUSSION

Analysis 

The Court initially notes that Plaintiff’s allegations of premises liability and negligence are duplicative. They are based on the same theory of recovery (negligence) and the same facts (Plaintiff slipped and fell from a greasy surface on Defendant’s property). Accordingly, the Court treats both of Plaintiff’s causes of action for premises liability and negligence as one.

The Court Considers the Opposition Despite a Procedural Defect

Despite Defendant’s two separate requests to do otherwise (motion 5:10-6:9), the Court considers Plaintiff’s opposition. 

First, Defendant correctly notes Plaintiff did not include a proof of service reflecting service of her papers. However, Defendant filed a reply on the merits and Defendant does not identify any specific prejudice. 

Second, Defendant correctly notes that Plaintiff did not sign any of her papers. However, this does not merit the Court to strike the opposition pursuant to Code of Civil Procedure section 128.7. Defendant overlooks the fact that unless a document is required to be filed “under penalty of perjury,” an electronically-filed copy is deemed signed by the party who filed it electronically. (Code Civ. Proc., § 1010.6, subd. (b)(2)(A); Cal. Rules of Court rule 2.257(b).) The documents filed in opposition include a memorandum of points and authorities, exhibits, and separate statements, none of which are required to be filed under penalty of perjury.

Existence of a Dangerous Condition

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 v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for [visitors’] use or to give a warning adequate to enable them to avoid the harm.” (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.) The existence and scope of a property owner’s duty are legal questions for the court. (Annocki, supra, 232 Cal.App.4th at p. 36.)

Defendant’s undisputed material facts establish the following. Plaintiff alleges Plaintiff slipped and fell from a slippery substance on Defendant’s property on January 17, 2016. (UMF No. 1.) The slippery substance was on Defendant’s property because Defendant failed to supervise, manage, control, maintain, inspect, clean, and monitor its gas station floor. (Ibid.) Plaintiff testified that she slipped after stepping over a gas hose that was inserted in Plaintiff’s gas tank. (UMF No. 13.) Plaintiff testified that she had no difficulty stepping over the gas hose and did not trip. (UMF No. 16.)

Defendant’s undisputed material facts also establish the following. Plaintiff’s daughter-in-law, who was in the car at the time of Plaintiff’s fall, did not see any liquid or debris in the area where Plaintiff fell. (UMF Nos. 10, 19.) Plaintiff’s daughter-in-law did not feel her feet slip out from under her when helping Plaintiff up. (UMF No. 19.)

Defendant’s undisputed material facts further establish the following. John Brault, MS, a biometrics consultant, inspected and performed coefficient of friction testing of the subject gas pump area using a Mark IIIB tribometer in wet and dry conditions on March 13, 2019. (UMF No. 22.) Mr. Brault concluded that Plaintiff fell from tripping over the gas hose. (UMF No. 23.) Plaintiff’s expert, Brad Avrit, did not inspect, visit, measure, or photograph the subject parking lot, but opined that the dangerous condition that caused Plaintiff’s fall was a slippery substance. (UMF No. 25.) Mr. Avrit relied on Plaintiff’s deposition testimony and surveillance video in opining Plaintiff fell from a slippery substance. (UMF No. 26.) Mr. Avrit relied on circumstantial evidence in reaching his conclusions. (UMF No. 27.)

The Court finds Defendant has not met its burden in establishing Plaintiff did not fall from a slippery substance. Defendant has submitted evidence showing Plaintiff slipped from a slippery substance in the form of Plaintiff’s deposition testimony. Regardless of Mr. Brault’s opinion that Plaintiff fell from tripping over the gas hose, Plaintiff’s deposition testimony remains as evidence that there is a triable issue of material fact as to whether Plaintiff slipped and fell on Defendant’s property.

Because Defendant does not meet its initial burden, the Court does not need to examine Plaintiff’s evidence to see if it creates a triable issue of material fact.

The Court quickly notes that Mr. Avrit’s reliance on circumstantial evidence is proper in opining as to what caused Plaintiff’s fall. More often than not, there is no direct evidence for an expert to review when an expert is tasked with determining the cause of a fall that occurred years ago. Nevertheless, Mr. Avrit’s opinion is not relied on as evidence showing there is a triable issue of material fact. Plaintiff’s deposition testimony that Plaintiff slipped and fell on Defendant’s property is sufficient on its own in demonstrating there is a triable issue of material fact as to the existence of the alleged dangerous condition. Accordingly, summary judgment and summary adjudication cannot be granted on the ground that no dangerous condition existed.

Causation

A defendant “causes” harm when the defendant’s act or omission was a substantial factor in bringing about the injury. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778.) “In cases involving ‘secondary assumption of risk’-where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty-the doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibilities of the parties.” (Knight v. Jewett (1992) 3 Cal.4th 296, 315.)

Defendant first argues Defendant did not cause Plaintiff’s harm because Plaintiff has not produced evidence showing there was a dangerous condition. (UMF No. 9:23-9:25, 10:21-10:22.) This is not true. Plaintiff testified that she fell from a slippery substance on Defendant’s property. This is enough to demonstrate causation.

Defendant also directs the Court’s attention to its expert’s inspection, testing, and review of evidence in showing that the cause of Plaintiff’s fall was the gas pump and not a slippery substance. (Motion, p. 12:5-12:10.) Yet, like the above arguments, this evidence is contradicted by Plaintiff’s deposition testimony showing otherwise. To rule in Defendant’s favor on this ground would require the Court to weigh evidence, which the Court is strictly forbidden to do on a summary judgment standard. (See Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Accordingly, summary judgment and summary adjudication cannot be granted on the ground that Defendant did not cause Plaintiff’s harm.

Notice

“A plaintiff alleging injuries based on a dangerous condition must prove the defendant either: (1) created the dangerous condition, or (2) knew or should have known of the dangerous condition. (See Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036; see also Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) “[A] defendant is entitled to judgment as a matter of law if the plaintiff fails to show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection.” (Ortega, supra, 26 Cal.4th at p. 1207.)

Defendant’s undisputed material facts additionally establish the following. During January 2016, Defendant’s employees performed daily inspections for defective equipment were performed on the subject premises before opening and as-needed throughout the day. (UMF No. 5.) There is no record of defective equipment at the subject premises on January 17, 2016. (UMF No. 6.) A record would be made of any spill greater than a gallon or a spill that entered the storm drain in a spill log. (UMF No. 9.) There were no such spills recorded in the spill log at the subject premises in January 2016. (Ibid.) Defendant had one or two employees during January of 2016 continually walking around the subject premises to help customers and monitor for spills. (UMF No. 7.) Defendant has no knowledge of any previous slip and fall incidents where Plaintiff fell. (UMF No. 28.)

The Court finds Defendant met its burden in showing it did not have notice of the dangerous condition. The evidence shows Defendant actively sought out spills, but did not have records of any for the entire month in which Plaintiff was injured. As such, because Defendant meets its initial burden, the burden shifts to Plaintiff to show there is a triable issue of material fact.

Of the specified UMF Nos. above, Plaintiff only disputes No. 6, referring the Court to Plaintiff’s Statement of Genuine Dispute of Material Facts No. 1, which relies on inadmissible evidence as stated above (Exhibit K) that claims that the concrete where the incident occurred was replaced in order to “locate vapor leak.” Plaintiff does not otherwise proffer any admissible evidence to show there is a triable issue of material fact on notice.

Accordingly, summary judgment is properly granted on this ground.

CONCLUSION

Defendant’s motion for summary judgment is GRANTED.

Defendant is ordered to give notice of this ruling.

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

Case Number: BC664601    Hearing Date: October 27, 2020    Dept: 28

Motion to be Relieved as Counsel

Having considered the moving papers, the Court rules as follows. No opposing papers have been filed.

BACKGROUND

On June 12, 2017, Plaintiff Romit Russota (“Plaintiff”) filed a complaint against Defendants Costco Wholesale Corporation and Ruben Suarez.  Plaintiff alleges premises liability and negligence in the complaint for a slip-and-fall that occurred on January 17, 2016.

On November 14, 2019, the Court dismissed Defendant Ruben Suarez with prejudice.

On August 18, 2020, Edward S. Fine filed a motion to be relieved as counsel pursuant to California Code of Civil Procedure section 284, subdivision (2).

On September 24, 2020, the Court continued this motion as counsel for Plaintiff Edward Fine filed to submit a declaration on requisite form MC-052.  Additionally, the Court noted that there was no evidence that the moving papers were served on Plaintiff.  

PARTY’S REQUEST

Edward S. Fine seeks to be relieved as counsel of record for Plaintiff because Edward S. Fine was mistakenly included on the original complaint and has not served as Plaintiff’s lawyer in any capacity in this case.

LEGAL STANDARD

California Rule of Court rule 3.1362 (Motion to Be Relieved as Counsel) requires (1) notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)).

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)

DISCUSSION

At the prior hearing in this matter, the Court noted that Edward S. Fine completed forms MC-051 and MC-053, but failed to submit a declaration on the required form MC-052.  On October 5, 2020, Fine filed two declarations on Form MC-052.  The declaration differ little in substance; one containing an explanation as to why relief is sought.  Both declarations contain a declaration of due diligence, which reflects that registered process server Guillermo Verjan made ten attempts to serve the “Notice of Motion to be Relieved as Counsel, Declaration of Edward S. Fine in Support of Attorney’s Motion to be Relieved as Counsel, Declaration of Michael J. Libman, Order Granting Attorney’s Motion to be Relieved as Counsel, Proof of Service” on Plaintiff’s address at 1335 26th St. Apt. 4, Santa Monica, CA 904042014. On September 22, 2020, substituted service was effected on Plaintiff by service on a co-occupant of the address, and the documents were mailed to the address the same day. 

Counsel has corrected the defects noted by the Court at the prior hearing.

CONCLUSION

Edward S. Fine’s motion to be relieved as counsel is GRANTED.

Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On June 12, 2017, Plaintiff Romit Russota (“Plaintiff”) filed a complaint against Defendants Costco Wholesale Corporation and Ruben Suarez.  Plaintiff alleges premises liability and negligence in the compliant for a slip-and-fall that occurred on January 17, 2016.

On November 14, 2019, the Court dismissed Defendant Ruben Suarez with prejudice.

On April 3, 2020, Defendant Costco Wholesale Corporation filed a motion for summary judgment, or in the alternative, summary adjudication pursuant to California Code of Civil Procedure section 437c.

On July 23, 2020, this matter came for hearing before the Court. Defendant was ordered to refile and reserve the papers as the proof of service reflected an incorrect address for pro per Plaintiff. 

PARTYS REQUEST

Defendant Costco Wholesale Corporation (“Moving Defendant”) asks the Court to grant summary judgment, or in the alternative, summary adjudication against Plaintiff and in Moving Defendant’s favor for three reasons.  First, the dangerous condition Plaintiff alleges caused Plaintiff’s injuries did not exist.

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.” (Ibid.) “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

This matter came for hearing before the Court on July 23, 2020. There were no appearances for Plaintiff. However, her son was present and represented that Plaintiff was sick and could not attend the hearing. The Court noted that the proof of service for the motion for summary judgment did not reflect Plaintiff’s correct address. The Court denied Defendant’s Motion for Summary Judgment without prejudice, and ordered Defendant to re-file and re-serve the moving papers to Plaintiff’s address at 1335 26th Street, #4, Santa Monica, California. (7/23/20 Order.) Defendant reserved the papers on August 8, 2020, and reserved the present October 27, 2020, hearing. 

On August 18, 2020, counsel for Plaintiff, Edward Fine, moved to be relieved as counsel. The motion was heard on September 24, 2020, and continued to the present date, October 27, 2020. Fine failed to provide the requisite declaration on form MC-052, or proof of service of the moving papers on Plaintiff. Fine has now corrected the defects of his motion, and the motion shall be granted. As such, Plaintiff is now without representation. 

On October 19, 2020, Plaintiff filed a “Request for Continuance on Motion for Summary Judgment,” in which Plaintiff represents that he has been unable to retain present counsel Edward S. Fine, and has been unable to retain another attorney. Plaintiff raises an argument in the request that the Motion mispresents facts pertaining to the incident, but does not do so in a formal opposition nor does Plaintiff submit evidence. However, Plaintiff indicates that he is working with a legal aid company in order to address the motion for summary judgment and submit a formal opposition, and requests additional time to respond. 

In light of Plaintiff’s inability to retain counsel,  the hearing in this matter shall be continued one additional time. No further continuances shall be allowed for a failure to retain counsel. 

CONCLUSION

Defendant’s Motion for Summary Judgment is CONTINUED to January 25, 2021 at 1:30 p.m. in Department 28.  

Edward S. Fine is ordered to give notice of these rulings.

Case Number: BC664601    Hearing Date: September 24, 2020    Dept: 28

Motion to be Relieved as Counsel

Having considered the moving papers, the Court rules as follows. opposing papers have been filed.

BACKGROUND

On June 12, 2017, Plaintiff Romit Russota (“Plaintiff”) filed a complaint against Defendants Costco Wholesale Corporation and Ruben Suarez.  Plaintiff alleges premises liability and negligence in the complaint for a slip-and-fall that occurred on January 17, 2016.

On November 14, 2019, the Court dismissed Defendant Ruben Suarez with prejudice.

On August 18, 2020, Edward S. Fine filed a motion to be relieved as counsel pursuant to California Code of Civil Procedure section 284, subdivision (2).

Trial is scheduled for March 4, 2021.

PARTY’S REQUEST

Edward S. Fine seeks to be relieved as counsel of record for Plaintiff because Edward S. Fine was mistakenly included on the original complaint and has not served as Plaintiff’s lawyer in any capacity in this case.

LEGAL STANDARD

California Rule of Court rule 3.1362 (Motion to Be Relieved as Counsel) requires (1) notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)).

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)

DISCUSSION

Edward S. Fine has completed forms MC-051 and MC-053.  Edward S. Fine has included his declaration and the declaration of Plaintiff’s prior counsel, Michael J. Libman.  Neither of these declarations are on the required form MC-052.  That form includes information essential for the Court’s determination as to whether the motion is granted.  Edward S. Fine has not included all of the information on required form MC-052 within the declarations filed in support of this motion, such as whether Plaintiff’s address has been confirmed within the past thirty days.  As such, the Court finds it to be in the interest of justice to continue the hearing to allow Edward S. Fine to file and serve a declaration on the required form MC-052.

The Court also notes that there is no evidence showing the moving papers were served on Plaintiff.  The proof of service of the documents attached to form MC-051 shows the moving papers were only served on Defendant Costco Wholesale Corporation’s counsel.  As such, Edward S. Fine is expected to have properly served the moving papers on Plaintiff in order to provide Plaintiff with due process.

CONCLUSION

The hearing on Edward S. Fine’s motion to be relieved as counsel is CONTINUED to October 27, 2020 at 2:30 p.m. in Department 28 of Spring Street Courthouse located at 312 North Spring Street, Los Angeles, California 90012.

Edward S. Fine is ordered to give notice of this ruling.

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

Case Number: BC664601    Hearing Date: July 23, 2020    Dept: 28

Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Having considered the moving papers, the Court rules as follows.

BACKGROUND

On June 12, 2017, Plaintiff Romit Russota (“Plaintiff”) filed a complaint against Defendants Costco Wholesale Corporation and Ruben Suarez.  Plaintiff alleges premises liability and negligence in the compliant for a slip-and-fall that occurred on January 17, 2016.

On November 14, 2019, the Court dismissed Defendant Ruben Suarez with prejudice.

On April 3, 2020, Defendant Costco Wholesale Corporation filed a motion for summary judgment, or in the alternative, summary adjudication pursuant to California Code of Civil Procedure section 437c.

PARTYS REQUEST

Defendant Costco Wholesale Corporation (“Moving Defendant”) asks the Court to grant summary judgment, or in the alternative, summary adjudication against Plaintiff and in Moving Defendant’s favor for three reasons.  First, the dangerous condition Plaintiff alleges caused Plaintiff’s injuries did not exist.

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.” (Ibid.) “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

The Court initially notes that Plaintiff’s allegations of premises liability and negligence are duplicative.  They are based on the same theory of recovery (negligence) and the same facts (Plaintiff slipped and fell from a greasy surface on Moving Defendant’s property).  Accordingly, the Court treats both of Plaintiff’s causes of action for premises liability and negligence as one.

Existence of a Dangerous Condition

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 v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for [visitors’] use or to give a warning adequate to enable them to avoid the harm.”  (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.) The existence and scope of a property owner’s duty are legal questions for the court. (Annocki, supra, 232 Cal.App.4th at p. 36.)

Moving Defendant’s undisputed material facts establish the following.  Plaintiff alleges Plaintiff slipped and fell from a slippery substance on Moving Defendant’s property on January 17, 2016.  (UMF No. 1.)  The slippery substance was on Moving Defendant’s property because Moving Defendant failed to supervise, manage, control, maintain, inspect, clean, and monitor its gas station floor.  (Ibid.)

Moving Defendant’s undisputed material facts also establish the following.  Plaintiff’s daughter-in-law, who was in the car at the time of Plaintiff’s fall, did not see any liquid or debris in the area where Plaintiff fell.  (UMF Nos. 10, 19.)  Plaintiff’s daughter-in-law did not feel her feet slip out from under her when helping Plaintiff up.  (UMF No. 19.)

Moving Defendant’s undisputed material facts further establish the following.  John Brault, MS, a biometrics consultant, inspected and performed coefficient of friction testing of the subject gas pump area using a Mark IIIB tribometer in wet and dry conditions on March 13, 2019.  (UMF No. 22.)  Mr. Brault concluded that Plaintiff fell from tripping over the gas hose.  (UMF No. 23.)  Plaintiff’s expert, Brad Avrit, did not inspect, visit, measure, or photograph the subject parking lot, but opined that the dangerous condition that caused Plaintiff’s fall was a slippery substance.  (UMF No. 25.)  Mr. Avrit relied on Plaintiff’s deposition testimony and surveillance video in opining Plaintiff fell from a slippery substance.  (UMF No. 26.)  Mr. Avrit relied on circumstantial evidence in reaching his conclusions.  (UMF No. 27.)

The Court finds Moving Defendant has not met its burden in establishing Plaintiff did not fall from a slippery substance.  Moving Defendant has submitted evidence showing Plaintiff slipped from a slippery substance in the form of Plaintiff’s deposition testimony.  Regardless of Mr. Brault’s opinion that Plaintiff fell from tripping over the gas hose, Plaintiff’s deposition testimony remains as evidence that there is a triable issue of material fact as to whether Plaintiff slipped and fell on Moving Defendant’s property.

The Court quickly notes that Mr. Avrit’s reliance on circumstantial evidence is proper in opining as to what caused Plaintiff’s fall.  More often than not, there is no direct evidence for an expert to review when an expert is tasked with determining the cause of a fall that occurred years ago.  Nevertheless, Mr. Avrit’s opinion is not relied on as evidence showing there is a triable issue of material fact.  Plaintiff’s deposition testimony that Plaintiff slipped and fell on Defendant’s property is sufficient on its own in demonstrating there is a triable issue of material fact as to the existence of the alleged dangerous condition.  Accordingly, summary judgment and summary adjudication cannot be granted on the ground that no dangerous condition existed.

Causation

A defendant “causes” harm when the defendant’s act or omission was a substantial factor in bringing about the injury.  (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778.)  “In cases involving ‘secondary assumption of risk’-where the defendant does owe a duty of care to the plaintiff, but the plaintiff proceeds to encounter a known risk imposed by the defendant’s breach of duty-the doctrine is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss resulting from the injury, may consider the relative responsibilities of the parties.”  (Knight v. Jewett (1992) 3 Cal.4th 296, 315.)

Moving Defendant first argues Moving Defendant did not cause Plaintiff’s harm because Plaintiff has not produced evidence showing there was a dangerous condition.  (UMF No. 9:23-9:25, 10:21-10:22.)  This is not true.  Plaintiff testified that she fell from a slippery substance on Moving Defendant’s property.  This is enough to demonstrate causation.

Moving Defendant also directs the Court’s attention to its expert’s inspection, testing, and review of evidence in showing that the cause of Plaintiff’s fall was the gas pump and not a slippery substance.  (Motion, p. 12:5-12:10.)  Yet, like the above arguments, this evidence is contradicted by Plaintiff’s deposition testimony showing otherwise.  To rule in Moving Defendant’s favor on this ground would require the Court to weigh evidence, which the Court is strictly forbidden to do on a summary judgment standard.  (See Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.)  Accordingly, summary judgment and summary adjudication cannot be granted on the ground that Moving Defendant did not cause Plaintiff’s harm.

Notice

“A plaintiff alleging injuries based on a dangerous condition must prove the defendant either: (1) created the dangerous condition, or (2) knew or should have known of the dangerous condition. (See Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036; see also Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) “[A] defendant is entitled to judgment as a matter of law if the plaintiff fails to show that the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection.” (Ortega, supra, 26 Cal.4th at p. 1207.)

Moving Defendant’s undisputed material facts additionally establish the following. Ibid.)  Moving Defendant had one or two employees during January of 2016 continually walking around the subject premises to help customers and monitor for spills.  (UMF No. 7.)  Costco has no knowledge of any previous slip and fall incidents where Plaintiff fell.  (UMF No. 28.)

The Court finds Moving Defendant met its burden in showing it did not have notice of the dangerous condition.  The evidence shows Moving Defendant actively sought out spills, but did not have records of any for the entire month in which Plaintiff was injured.  As such, summary judgment is properly granted on this ground.

CONCLUSION

Moving Defendant’s motion for summary judgment 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.

Case Number: BC664601    Hearing Date: February 13, 2020    Dept: 28

Motion to be Relieved as Counsel

Having considered the moving papers, the Court rules as follows. opposing papers have been filed.

BACKGROUND

On June 12, 2017, Plaintiff Romit Russota (“Plaintiff”) filed a complaint against Defendants Costco Wholesale Corporation and Ruben Suarez alleging premises liability and negligence for a slip-and-fall that occurred on January 17, 2016.

On November 14, 2019, the Court dismissed Defendant Ruben Suarez with prejudice.

On January 13, 2019, Michael J. Libman, counsel for Plaintiff, filed a motion to be relieved as counsel pursuant to California Code of Civil Procedure section 284, subdivision (2).

A trial setting conference is set for March 4, 2020.

PARTY’S REQUEST

Michael J. Libman seeks to be relieved as counsel for Plaintiff because there has been a breakdown in the attorney-client relationship.

LEGAL STANDARD

California Rule of Court rule 3.1362 (Motion to Be Relieved as Counsel) requires (1) notice of motion and motion to be directed to the client (made on the Notice of Motion and Motion to be Relieved as Counsel—Civil form (MC-051)); (2) a declaration stating in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1) (made on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel—Civil form (MC-052)); (3) service of the notice of motion and motion and declaration on all other parties who have appeared in the case; and (4) the proposed order relieving counsel (prepared on the Order Granting Attorney's Motion to Be Relieved as Counsel—Civil form (MC-053)).

The court has discretion to allow an attorney to withdraw, and such a motion should be granted provided that there is no prejudice to the client and it does not disrupt the orderly process of justice. (See Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)

DISCUSSION

Michael J. Libman has completed forms MC-051, MC-052, and MC-053.  These documents were served on Plaintiff on January 13, 2020 by U.S. mail.  Michael J. Libman declares that there has been a breakdown in the attorney-client relationship.

The Court finds the motion is properly granted.  There is no evidence showing Plaintiff would be prejudiced of the orderly process of justice would be disrupted in granting this motion.  Trial is not set in this matter.  Plaintiff has enough time to retain substitute counsel and for that counsel to prepare for trial.

CONCLUSION

The motion is GRANTED.

Michael J. Libman is relieved as counsel for Plaintiff effective upon the filing of the proof of service of Order Granting Attorney’s Motion to be Relieved as Counsel–Civil form MC–053.

Michael J. Libman is ordered to give notice of this ruling.

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