This case was last updated from Los Angeles County Superior Courts on 07/14/2019 at 00:03:26 (UTC).

THERESA LIETZAU VS ALBERTSONS COMPANIES LLC

Case Summary

On 01/17/2018 THERESA LIETZAU filed a Personal Injury - Other Personal Injury lawsuit against ALBERTSONS COMPANIES LLC. 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:

    ****0653

  • Filing Date:

    01/17/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

CHRISTOPHER K. LUI

 

Party Details

Plaintiff and Petitioner

LIETZAU THERESA

Defendants and Respondents

ALBERTSONS COMPANIES LLC

DOES 1 TO 25

Other

FOX & FOX LAW OFFICES OF

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

MESRIANI RODNEY ESQ.

Defendant and Respondent Attorney

DISCOE TONY A. ESQ.

 

Court Documents

COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

1/17/2018: COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

SUMMONS

1/17/2018: SUMMONS

PLAINTIFF'S NOTICE OF ASSOCIATION OF COUNSEL

4/17/2018: PLAINTIFF'S NOTICE OF ASSOCIATION OF COUNSEL

Other -

4/2/2018: Other -

Notice

4/2/2018: Notice

Answer

4/2/2018: Answer

PROOF OF SERVICE SUMMONS

3/22/2018: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

3/22/2018: PROOF OF SERVICE SUMMONS

 

Docket Entries

  • 07/03/2019
  • at 10:00 AM in Department 4A, Christopher K. Lui, Presiding; Final Status Conference - Not Held - Continued - Stipulation

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  • 05/29/2019
  • Separate Statement; Filed by Albertsons Companies, LLC (Defendant)

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  • 05/29/2019
  • Separate Statement; Filed by Albertsons Companies, LLC (Defendant)

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  • 05/29/2019
  • Motion for Summary Judgment; Filed by Albertsons Companies, LLC (Defendant)

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  • 03/13/2019
  • [Proposed Order] and Stipulation to Continue Trial, FSC (and Related Motion/Discovery Dates) Personal Injury Courts Only (Central District); Filed by Albertsons Companies, LLC (Defendant)

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  • 04/17/2018
  • Association of Attorney; Filed by Theresa Lietzau (Plaintiff)

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  • 04/17/2018
  • PLAINTIFF'S NOTICE OF ASSOCIATION OF COUNSEL

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  • 04/02/2018
  • Demand for Jury Trial; Filed by Albertsons Companies, LLC (Defendant)

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  • 04/02/2018
  • Notice of Posting Jury Fees

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  • 04/02/2018
  • Answer

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  • 04/02/2018
  • Demand for Trial by Jury

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  • 04/02/2018
  • Notice; Filed by Albertsons Companies, LLC (Defendant)

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  • 04/02/2018
  • Answer; Filed by Albertsons Companies, LLC (Defendant)

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  • 03/22/2018
  • Proof of Service (not Summons and Complaint); Filed by Theresa Lietzau (Plaintiff)

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  • 03/22/2018
  • PROOF OF SERVICE SUMMONS

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  • 03/22/2018
  • PROOF OF SERVICE SUMMONS

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  • 01/17/2018
  • COMPLAINT-PERS. INJURY, PROP DAMAGE, WRONGFUL DEATH (2 PAGES)

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  • 01/17/2018
  • SUMMONS

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  • 01/17/2018
  • Complaint; Filed by Theresa Lietzau (Plaintiff)

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Tentative Rulings

Case Number: BC690653    Hearing Date: August 24, 2020    Dept: 28

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

Having considered the moving and opposing papers, the Court rules as follows. reply papers were filed.

BACKGROUND

On January 17, 2018, Plaintiff Theresa Lietzau (“Plaintiff”) filed a complaint against Defendant Albertsons Companies, LLC (“Defendant”).  Plaintiff alleges negligence and premises liability in the complaint for her right foot coming in contact with a protruding component of the bottom of a cash register on February 4, 2016.

On September 9, 2019, the Court denied Defendant’s motion for summary judgment or, in the alternative, summary adjudication brought on the ground that the alleged dangerous condition was trivial.

On January 8, 2020, Defendant filed a motion for motion for summary judgment, or in the alternative, summary adjudication pursuant to California Code of Civil Procedure section 437c.

On March 17, 2020, the Court continued the hearing on Defendant’s motion for summary judgment, or in the alternative, summary adjudication to May 14, 2020.

On April 20, 2020, the Court continued the hearing on Defendant’s motion for summary judgment, or in the alternative, summary adjudication to August 24, 2020 at 2:30 p.m.

On July 13, 2020, the Court advanced the hearing on Defendant’s motion for summary judgment, or in the alternative, summary adjudication to August 24, 2020 at 1:30 p.m.

A trial setting conference is scheduled for August 24, 2020.

PARTYS REQUEST

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, Defendant did not have actual notice of the dangerous condition on the day of Plaintiff’s injury.  Second, Defendant did not have constructive notice of the dangerous condition on the day of Plaintiff’s injury.  Third, Defendant acted reasonably on the day of Plaintiff’s injury.

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 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.)

“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.) Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281, 1293 [citing Ortega, supra, 26 Cal.4th at p. 1210-1211].)

As the Court find in its September 9, 2019 minute order, Plaintiff’s negligence and premises liability causes of action are duplicative.  They rely on the same theory of recovery (negligence) and the same set of facts (Plaintiff’s right foot and toes came in contact with a protruding component attached to the bottom of the self-service cash register).  Accordingly, the Court treats both of Plaintiff’s causes of action as one.

The Court also notes that Defendant’s motion at bar is proper in that it does not contain any issues that were asserted in Defendant’s prior motion for summary judgment, or in the alternative, summary adjudication that was denied on September 9, 2019.  (See Code Civ. Proc., § 473c, subd. (f)(2).)

The Court first addresses why Defendant’s undisputed material fact number twelve does not shift the burden of proof to Plaintiff.  Defendant’s undisputed material fact number twelve states Defendant’s actions were reasonable.  The underlying evidence consists of Plaintiff’s response to interrogatory number twenty-two of Defendant’s Request for Admissions (Set One).  There, Plaintiff admits that Defendant’s actions were reasonable at all times on the day of the incident.  However, Plaintiff submitted a conflicting response to interrogatory number one of that same set of written discovery.  In that response, Plaintiff denies that Defendant was not negligent in the use or maintenance of its property on the day of the incident.  Plaintiff’s response to interrogatory number one belies Defendant’s argument that it is not liable pursuant to Plaintiff’s response to interrogatory number twenty-two.  Therefore, the Court finds Defendant did not meet its burden based on its undisputed fact number twelve.

Defendant’s undisputed material facts establish the following. foot made contact with a bent portion of a door panel.  (UMF No. 3.)  The condition was so small that it could not be appreciated by looking directly at it.  (UMF No. 5.)  The condition could be appreciated only by feeling it.  (UMF No. 6.)  Plaintiff has no evidence of how the door panel became bent.  (UMF No. 8.)  Plaintiff does not know how long the door panel was bent.  (UMF No. 10.)  Defendant did not have actual notice of the bent door panel prior to the incident.  (UMF No. 13.)

Defendant’s undisputed material fact number fourteen states Defendant did not have constructive notice of the bent door panel prior to the incident.  The underlying evidence does not support this assertion.  Defendant cites Plaintiff’s responses to interrogatory numbers eight, nine, and twenty-two to Defendant’s Request for Admissions (Set One).  In response to interrogatory number eight, Plaintiff admitted to not having evidence of how the door panel became bent.  In response to interrogatory number nine, Plaintiff admitted that she does not know how long the door panel was bent.  The lack of burden-carrying value in Plaintiff’s response to interrogatory number twelve is addressed above.  In viewing this evidence, it becomes apparent that Plaintiff does not have evidence showing Defendant had constructive notice of the bent door panel prior to the incident.  This distinction is relevant when reviewing Plaintiff’s spoliation argument as addressed below.  However, before that issue is addressed, the Court addresses whether Defendant has met its burden.

The Court finds Defendant has met its burden. Defendant’s evidence shows Defendant did not have notice of the dangerous condition before Plaintiff was injured from it.  Defendant’s evidence also shows Plaintiff does not have evidence showing how the dangerous condition came into existence or how long it was present.  Defendant must have either created the dangerous condition or had either actual or constructive notice of the dangerous condition to be liable for Plaintiff’s injuries.  Defendant has shown there is no triable issue of material fact regarding whether it created or had sufficient notice of the dangerous condition and, thus, the burden shifts to Plaintiff.

Plaintiff argues a triable issue of material fact exists regarding whether Defendant had sufficient notice of the dangerous condition because Defendant has tampered with evidence.  (Opposition, pp. 6:7-6:17: 11:9-11:11.)  However, “spoliation of evidence alone does not necessarily create a triable issue.”  (Reeves v. MV Transportation, Inc. (2010) 186 Cal.App.4th 666, 682.)  “In addition to spoliation, there must be [] some (not insubstantial) evidence[] for the plaintiff’s cause of action [to] allow the plaintiff to survive summary judgment.”  (Ibid. [quotations and citation omitted].)

Plaintiff argues Defendant had constructive notice of the dangerous condition because the dangerous condition existed for at least a sufficient time to be discovered by ordinary care and inspection.  Plaintiff has submitted evidence showing Defendant would perform monthly checks for unsafe conditions of the store.  (Motion, Exh. G, Rodriguez Depo, p. 9:1-9:9.) Motion, Exh. G, Rodriguez Depo, p. 26:8-26:22.)

The Court finds Plaintiff has met her burden.  The evidence shows Defendant performs monthly safety checks and the last known check was performed sometime in the month before Plaintiff’s February 4, 2016 injury.  This means the inspection could have occurred any time between January 1, 2016 and January 31, 2016.  When viewing this evidence in the light most favorable of Plaintiff, the inspection could have occurred on January 1, 2016.  The gap in time between January 1, 2016 and February 4, 2016 is a sufficient passage of time for Defendant to have discovered the dangerous condition with a reasonable inspection.  Accordingly, the motion is properly denied.

CONCLUSION

Defendant’s motion for summary judgment is DENIED.

Defendant’s motion for summary adjudication is DENIED.

Defendant is ordered to give notice of this ruling.

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

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