On 01/16/2018 SANDRA LYNNE FLOWERS filed a Personal Injury - Other Personal Injury lawsuit against THE STONEHAUS. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are JON R. TAKASUGI, HOLLY E. KENDIG and THOMAS D. LONG. The case status is Pending - Other Pending.
Pending - Other Pending
Los Angeles County Superior Courts
Stanley Mosk Courthouse
Los Angeles, California
JON R. TAKASUGI
HOLLY E. KENDIG
THOMAS D. LONG
FLOWERS SANDRA LYNNE
DOES 1 THROUGH 20 INCLUSIVE
STONEHAUS LLC A CALIFORNIA CORPORATION
SPIRIT OF THE STONEHAUS LLC A CAL. CORP
WESTLAKE PROPERTIES-INC-DBA THE STONEHAUS
DAVIDI DAVID ESQ.
CRONK ANNA H
LAMBRE MICHELLE MONICA
Court documents are not available for this case.
Hearing06/03/2022 at 08:30 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Jury TrialRead MoreRead Less
Hearing05/20/2022 at 10:00 AM in Department 31 at 312 North Spring Street, Los Angeles, CA 90012; Final Status ConferenceRead MoreRead Less
Docketat 08:30 AM in Department 31, Thomas D. Long, Presiding; (OSC RE Dismissal) - Not Held - Vacated by CourtRead MoreRead Less
Docketat 1:30 PM in Department 31, Thomas D. Long, Presiding; Trial Setting Conference - HeldRead MoreRead Less
Docketat 1:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion for Summary Judgment - HeldRead MoreRead Less
DocketMinute Order ( (Hearing on Motion for Summary Judgment; Trial Setting Conference)); Filed by ClerkRead MoreRead Less
DocketJudgment (Proposed Judgment on MSJ); Filed by Westlake Properties-Inc-dba The Stonehaus (Defendant)Read MoreRead Less
Docketat 2:30 PM in Department 31, Thomas D. Long, Presiding; Hearing on Motion for Summary Judgment - Not Held - Advanced and Continued - by CourtRead MoreRead Less
DocketNotice of Change of Firm Name; Filed by Westlake Properties-Inc-dba The Stonehaus (Defendant)Read MoreRead Less
Docketat 10:30 AM in Department 31, Thomas D. Long, Presiding; Trial Setting Conference - Held - ContinuedRead MoreRead Less
DocketAMENDED PROOF OF SERVICE OF SUMMONSRead MoreRead Less
DocketProof-Service/Summons; Filed by Sandra Lynne Flowers (Plaintiff)Read MoreRead Less
DocketPROOF OF SERVICE OF SUMMONSRead MoreRead Less
DocketProof-Service/SummonsRead MoreRead Less
DocketNotice; Filed by ClerkRead MoreRead Less
DocketNOTICE OF CLERICAL CORRECTIONRead MoreRead Less
DocketComplaintRead MoreRead Less
DocketComplaint; Filed by Sandra Lynne Flowers (Plaintiff)Read MoreRead Less
DocketSummons; Filed by Sandra Lynne Flowers (Plaintiff)Read MoreRead Less
DocketCivil Case Cover SheetRead MoreRead Less
Case Number: BC690259 Hearing Date: November 04, 2020 Dept: 31
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT
SANDRA LYNNE FLOWERS,
THE STONEHAUS, ET AL.,
Case No.: BC690259
[TENTATIVE] ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
November 4, 2020
Plaintiff, Sandra Lynne Flowers filed this action against Defendant, The Stonehaus, for damages arising out of a slip and fall. The basic facts relating to the fall are not disputed. Plaintiff was dining at Defendant’s restaurant and was seated on the patio. The patio was adjacent to an area containing sand and fine-ground dirt. When Plaintiff and her family finished dining, she got up out of her chair to use the restroom. However, as she was getting out of the chair, she could not gain traction, slipping and falling on accumulated sand/gravel under her table. Her foot became stuck on the wrought iron table base, causing her to sustain injuries.
Motion for Summary Judgment
Defendant moves for summary judgment on the complaint, contending:
There is no evidence of a dangerous condition on the premises;
Defendant lacked notice of any dangerous condition;
Even if small pieces of gravel were dangerous, the danger is trivial as a matter of law;
The gravel and sand were open and obvious;
Plaintiff cannot show anything Defendant did caused her to fall.
In reply, Defendant submits 12 objections total to the declaration of Gary M. Gsell (“Gsell”) and Plaintiff’s declaration attached to Plaintiff’s opposition. Objection 1 is overruled, as Plaintiff claims that the condition of the property on the date the photos were taken did not differ from its condition on the date of the incident, and thus, the photos are relevant. Objection 2 is sustained as hearsay. This statement by Gsell is admissible only to the extent it is offered for the non-hearsay purpose of showing his knowledge of Plaintiff’s allegations to lay the foundation for his opinions. Objections 3-12 are overruled as Gsell lays a weak but sufficient foundation for the statements asserted.
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 of production 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.)
No Dangerous Condition
Defendant’s first argument is that sand or gravel, even if present, does not constitute a dangerous condition. Defendant presents no evidence or meaningful argument on this issue. Defendant fails to show that sand and gravel on a concrete surface does not pose a risk of danger. Plaintiff, on the contrary, presents the Expert Declaration of Gary M. Gsell, who establishes he has inspected surfaces, including gravel and sand-coated surfaces, at length during his career as a municipal infrastructure assessment consultant. Gsell explains that the risk of slipping and falling on gravel or sand is commonly understood, and that restaurants therefore have an obligation to routinely sweep areas where gravel and sand commonly occur. Defendant failed to meet its moving burden to show the presence of sand and/or gravel where Plaintiff fell was not dangerous; even if Defendant did so, Plaintiff raised triable issues of material fact in this regard.
Defendant’s second argument is that it lacked notice of the defective condition. Defendant, however, focuses on its lack of notice that sand and/or gravel are dangerous, rather than on its lack of notice that sand and/or gravel were present. Defendant provides evidence that there had been no prior complaints of slip and fall incidents on the gravel.
This is not, however, the standard. The standard is whether Defendant had actual or constructive notice of the dangerous condition and/or created the dangerous condition. See Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 385. Defendant provides no evidence or argument showing that it did not create the dangerous condition. At minimum, Defendant had constructive notice that sand and/or gravel were present where Plaintiff fell, both because the sand/gravel area was adjacent to the patio area, and also because Defendant admits the condition of the patio at the time of the fall was substantially similar to the condition of the patio on a regular basis. This leads to the conclusion that Defendant was aware that sand and/or gravel typically accumulated on the patio.
d. Trivial Defect
Defendant next argues that any defect on the property was trivial as a matter of law. All of the cases cited by Defendant, and indeed all of the cases of which the Court is aware, apply this doctrine in the context of a crack or similar permanent defect in a piece of property. The Court is not aware of any authority applying this doctrine in the context of accumulated material, such as sand or gravel, on which a person or customer could potentially slip. Defendant therefore failed to meet its moving burden to show the doctrine applies, and the motion for summary judgment on this ground is denied.
Open and Obvious Defect
Defendant next argues the presence of sand and gravel on the property was open and obvious, such that it had no duty to warn of the presence of sand and/or gravel. The law on the subject of “open and obvious” danger is that "although the obviousness of a danger may obviate the duty to warn of its existence, if it is foreseeable that the danger may cause injury despite the fact that it is obvious (e.g., when necessity requires persons to encounter it), there may be a duty to remedy the danger, and the breach of that duty may in turn form the basis for liability...." Martinez v. Chippewa Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1184; Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 33.
Thus, even if Defendant did not have a duty to warn of the presence of sand and/or gravel on the patio, because Plaintiff had no choice but to encounter the danger, Defendant may have had a duty to cure the defect itself. The motion for summary judgment on this ground is therefore denied.
Defendant’s final argument is that nothing it did caused Plaintiff’s damages. However, the undisputed facts show that Plaintiff slipped and fell on sand and/or gravel under her table at Defendant’s restaurant. It is reasonable for the court to infer that Defendant allowed sand and/or gravel to accumulate so as to become a dangerous condition that in turn caused Plaintiff to slip and fall. Defendant therefore also failed to meet its burden to show nothing it did caused or contributed to Plaintiff’s damages.
The motion for summary judgment on this final ground is therefore also denied, and consequently the motion is denied in its entirety.
Defendant is ordered to give notice.
Parties who intend to submit on this tentative must send an email to the court at firstname.lastname@example.org 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 4th day of November, 2020
Hon. Thomas D. Long
Judge of the Superior Court