Robin Kimball v. CVS Pharmacy, Inc., et al

Case Number

22CV02905

Case Type

Hearing Date / Time

Wed, 04/03/2024 - 10:00

Nature of Proceedings

1) Defendant Reyes Coca-Cola Bottling, LLC’s Motion for Summary Judgment or in the Alternative Summary Adjudication; and, 2) Defendant Garfield Beach CVS LLC’s Motion for Summary Judgment or in the Alternative Summary Adjudication

Tentative Ruling

For Plaintiff Robin Kimball: Igor Fradkin and Daniel Azizi

For Defendants Reyes Coca-Cola Bottling, LLC and Garfield Beach CVS LLC: Traci S. Lagasse and Austin R. Wallick

                 

RULING

For the reasons set forth herein each of Defendants’ motions for summary judgment or in the alternative summary adjudication are denied.

Background

This action commenced on July 27, 2022, by the filing of the complaint by Plaintiff Robin Kimball against Defendant Garfield Beach CVS, LLC, erroneously sued as CVS Pharmacy, Inc. (“GBCVS”), Brenda Doe, and Does 1 through 25. On March 24, 2023, Kimball amended the complaint to substitute Defendant Reyes Coca-Cola Bottling, LLC (“RCCB”) in place of Doe 2. The complaint sets forth causes of action for: (1) Negligence; and (2) Premises Liability.

As alleged in the complaint:

On July 28, 2020, Kimball was at the CVS Pharmacy located at 222 W. Carrillo Street in Santa Barbara for the purpose of purchasing miscellaneous items. As Kimball “was selecting items from a display shelf, suddenly and without warning, a bottle and/or similar object fell onto Plaintiff, thereby causing Plaintiff to sustain [injuries].” (Complaint, ¶ 8.) CVS Pharmacy, Brenda Doe, and Does 1-25, “carelessly and negligently owned, rented, managed, leased, supervised, inspected, operated, maintained and/or controlled the premises located at or near 222 W Carrillo St., Santa Barbara, CA 93101, such that it was in a dangerous, defective and unsafe condition in conscious disregard for the risk of harm to invitees thereon. By reason of said carelessness, negligence and conscious disregard of the Defendants, and each of them, said premises were unsafe and dangerous to the general public and specifically Plaintiff, ROBIN KIMBALL.” (Complaint, ¶ 15)

RCCB and GBCVS now each move for summary judgment or, in the alternative, summary adjudication.

Kimball opposes the motions. Neither RCCB nor GBCVS timely filed a reply or any objections to Plaintiff’s evidence in opposition.

Analysis

            Evidentiary Objections

“In granting or denying a motion for summary judgment or summary adjudication, the Court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., § 437c, subd. (q).)

“ ‘The same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment. Declarations must show the declarant’s personal knowledge and competency to testify, state facts and not just conclusions, and not include inadmissible hearsay or opinion.’ ” [Citation.] “ ‘The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed. [Citation.] This does not mean that Courts may relax the rules of evidence in determining the admissibility of an opposing declaration. Only admissible evidence is liberally construed in deciding whether there is a triable issue.’ ” [Citation.]” (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 779.)

RCCB and GBCVS have provided a declaration from the general manager of RCCB, Paul Barela, in support of their motions for summary judgment. Barela declares, under penalty of perjury under the laws of the State of California, that he has personal knowledge of the information contained in the declaration. (Barela Dec., ¶ 1.) Kimball has objected to paragraphs two, three, and four of the declaration on the grounds that the statements lack foundation, lack personal knowledge, and are based on hearsay. Objection No. 1 is overruled whereby Barela declares: “RCCB does not own, operate, manage, possess, or control the Garfield Beach CVS store or related premises located at 222 W. Carrillo St. in Santa Barbara, California.” As general manager of RCCB, Barela would have personal knowledge of this fact and be competent to testify accordingly. For the same reason, Objection No. 2 is overruled whereby Barela declares: “RCCB stocks merchandise at this CVS store in accordance with a contract between RCCB and Garfield Beach CVS, LLC. For the same reason, Objection No. 3 is overruled whereby Barela declares: “RCCB does not perform inspections of conditions within the subject store as they relate to CVS customer safety. RCCB’s inspections of the premises relate only to stocking of RCCB merchandise.” For the same reason, Objection No. 5 is overruled whereby Barela declares: “Miguel Ibarra was the last RCCB employee to stock merchandise at the Garfield Beach CVS store prior to the incident, and did so on July 23, 2020.”

Objection No. 4 is sustained whereby Barela declares “RCCB and its employees stock merchandise in accordance with ordinary industry standards.” The statement lacks foundation and does not demonstrate personal knowledge of industry standards or how RCCB employees stock merchandise at any particular location.

            Standard on Summary Judgment

A Defendant’s motion for summary judgment asks the Court to determine that the entire action has no merit, and to terminate the action without the necessity of a trial. (Code Civ. Proc., § 437c, subd. (a).) The procedure enables the Court to look behind the pleadings to determine whether the party against whom the motion is directed has evidence to back up the claims. The Court must determine from the evidence presented 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, subd. (c).)

The moving party bears the burden of persuasion that that there is no triable issue of material fact, and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 235 Cal.4th 826, 850.) Consequently, a Defendant moving for summary judgment bears the burden of persuasion that one or more elements of the cause of action in question cannot be established, or that there is a complete defense thereto. (Ibid.) The motion must be supported by evidentiary facts, not merely the ultimate facts. Further, conclusions of fact or law are not sufficient to support a motion for summary judgment. (Snider v. Snider (1962) 200 Cal.App.2d 741, 751.) 

Once a moving Defendant meets its initial burden, the burden shifts to the Plaintiff to produce evidence to prove the existence of a triable issue of fact regarding that element of its cause of action or the defense at issue in the motion, and if Plaintiff is unable to do so, Defendant will be entitled to judgment as a matter of law. (Saelzler v. Advanced Group 400 (2001) 35 Cal.4th 763, 780-781.)

In ruling on a motion for summary judgment, the trial Court must consider all of the evidence and all of the inferences reasonably drawn therefrom (Code Civ. Proc., § 437c, subd. (c)), and must view the evidence and inferences in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 843.) In examining the sufficiency of the affidavits filed in connection with a summary judgment motion, those filed by the moving party are strictly construed, and those of the opposing party are liberally construed. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 20-21.)

In resolving the motion, the Court may not weigh the evidence. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Rather, the role of the trial Court in resolving a summary judgment motion is to determine whether issues of fact exist, not to decide the merits of the issues. (Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107.) A triable issue of material fact exists 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, supra, 25 Cal.4th at p. 850.) Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. (Molko v. Holy Spirit Assn., supra at p. 1107.)

“The presence of inferences supporting a judgment in favor of Plaintiff is sufficient to defeat a summary judgment in favor of Defendant.” (Hulett v. Farmers Ins. Exchange (1992) 10 Cal.App.4th 1051, 1060; superseded by statute on other grounds.)

            Separate Statement

“The Separate Statement in Opposition to Motion must be in the two-column format specified in (h).

“(1) Each material fact claimed by the moving party to be undisputed must be set out verbatim on the left side of the page, below which must be set out the evidence said by the moving party to establish that fact, complete with the moving party’s references to exhibits.

“(2) On the right side of the page, directly opposite the recitation of the moving party’s statement of material facts and supporting evidence, the response must unequivocally state whether that fact is ‘disputed’ or ‘undisputed.’ An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.

“(3) If the opposing party contends that additional material facts are pertinent to the disposition of the motion, those facts must be set forth in the separate statement. The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion. Each fact must be followed by the evidence that establishes the fact. Citation to the evidence in support of each material fact must include reference to the exhibit, title, page, and line numbers.” (Cal. Rules of Court, rule 3.1350(f).)

“The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed. The statement also shall set forth plainly and concisely any other material facts the opposing party contends are disputed. Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the Court’s discretion, for granting the motion.” (Code Civ. Proc., § 437c, subd. (b)(3).)

“Separate statements serve a laudable purpose. As explained in Weil & Brown, California Practice Guide (The Rutter Group 1996) Civil Procedure Before Trial, paragraph 10:94.1, pp. 10–31, 10–32, these documents are ‘intended to permit the judge to determine quickly whether the motion is supported by sufficient undisputed facts. If the opposing statement disputes an essential fact alleged in support of the motion, the judge merely has to review the evidence cited in support of that fact. This saves the judge from having to review all the evidentiary materials filed in support of and in opposition to the motion.’ ” (Kulesa v. Castleberry (1996) 47 Cal.App.4th 103, 113.)

After reviewing the evidence, many of the UMFs are not reasonably disputed by Plaintiff and are, in fact, included as information relied upon in Plaintiff’s opposition. Some of Plaintiff’s responses to the UMF’s do not even directly address what is claimed to be the undisputed fact. Not without blame, some of the Defendants stated UMF’s are not supported by the referenced evidence or have been slightly modified to imply different meanings than shown by the evidence.

As it pertains to RCCB, the undisputed, and not reasonably disputed, facts include:

“The Subject Premises are exclusively owned and operated by GBCVS.” (UMF No. 1.) “RCCB does not own, control, manage, or possess any party of the Subject Premises.” (UMF No. 2.) “RCCB stocks Coca-Cola merchandise at the subject location in accordance with a contract between GBCVS and RCCB.” (UMF No. 3.)

“The last RCCB employee to visit the Subject Premises to stock merchandise did so five (5) days prior to the incident, on July 23, 2020.” (UMF No. 5.) Plaintiff’s Complaint alleges she was injured while shopping at the CVS store located at 222 W Carrillo St. in Santa Barbara, CA on or about July 28, 2020.” (UMF No. 6.) “Plaintiff removed a bottle of Coca-Cola from a refrigerator near the exit.” (UMF No. 7.) “As the door to the refrigerator shut, a water bottle slid or fell from the top of the refrigerator and hit Plaintiff.” (UMF No. 8.) “Plaintiff admits that she never observed the water bottle before it fell.” (UMF No. 9.)

As it pertains to GBCVS, the undisputed, and not reasonably disputed, facts include the above UMFs as well as:

“Plaintiff does not know when GBCVS last inspected the premises prior to the incident, acknowledging it could have been mere minutes.” (UMF No. 6.)

Kimball includes 30 additional facts which she contends are material to RCCB’s motion and 45 additional facts (“PUMF”) which she contends are material to GBCVS’ motion. Neither RCCB nor GBCVS responded to the PUMF’s. The Court has reviewed the evidence in support and finds that many of the PUMF’s are supported by the evidence. To the extent that Kimball includes legal argument and sets forth legal conclusions, those PUMF’s will not be considered.

            Motions for Summary Judgment

RCCB argues that it is entitled to summary judgment because it owed no duty to Plaintiff, it had no notice of a dangerous condition, and Kimball cannot prove that RCCB proximately caused her injury.

GBCVS argues that it is entitled to summary judgment because Plaintiff cannot prove that a dangerous condition existed, there is no evidence suggesting GBCVS had notice of any dangerous condition, and Kimball cannot prove that GBCVS proximately caused her injury.

It is important to note that neither RCCB nor GBCVS specifically applies these arguments to either of Kimball’s causes of action separately, but rather sets them forth as applicable to the complaint as a whole. To be granted, a motion for summary judgment must dispose of the entire case. (Code Civ. Proc., § 437c, subd. (a)(1).) “[T]here is no such creature as ‘partial summary judgment’ in California. (Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 243.) As such, if either cause of action is sufficient to overcome summary judgment, the motion for summary judgment must be denied in its entirety.

As noted above, Kimball’s first cause of action is for negligence.

“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person, except so far as the latter has, willfully or by want of ordinary care, brought the injury upon himself or herself.” (Civ. Code, § 1714, subd. (a).)

As an initial note, RCCB has provided no admissible evidence that RCCB’s employee stocked the subject refrigerator according to industry standards. On the other hand, Kimball has provided the declaration of Civil Engineer Enrique Rivera who offers opinions including that the RCCB employee’s actions fell below the standard of care. (Rivera Dec., ¶ 19.)

As relevant to the RCCB motion for summary judgment: The undisputed and not reasonably disputed UMF’s and PUMF’s, as well as the admissible evidence relied upon, establish:

RCCB stocks Coca-Cola merchandise at the subject CVS. A 50 fluid ounce plastic water battle fell off the top of a refrigerator, containing Coca-Cola products, fell and hit Kimball. The water bottle was laying horizontally on top of other water bottles of water, or on the drink display rack that is slanted slightly toward the front, instead of standing up vertically. Bottles should be stacked vertically on top of the refrigerator because horizontally placed bottles can fall. 50-ounce bottles are supposed to be stocked in Aisle 8 of the CVS and do not fit in any of the display slots on top of the refrigerator. Only 20-ounce bottles are supposed to be in the display on top of the refrigerator. RCCB has admitted that it has a general duty to not cause harm to others. The last person who stocked the refrigerator, five days prior to the incident, was an RCCB employee.

As relevant to the GBCVS motion for summary judgment: In addition to the facts pertaining to RCCB, the undisputed and not reasonably disputed UMF’s and PUMF’s, as well as the admissible evidence relied upon, establish:

GBCVS relies on vendors to properly stock their products and does not check their work. GBCVS did not inspect the location within 30 minutes before the incident. GBCVS does not know when the refrigerator was last inspected prior to the incident. GBCVS does not know how long the bottle of SmartWater was laying improperly on top of the vertically placed bottles. GBCVS does not know who placed the bottle horizontally on top of the vertically placed bottles. GBCVS employees had a general responsibility to inspect the premises for hazards throughout the day. The CVS store manager at the subject location testified that CVS employees are not trained regarding how items are supposed to be stocked on shelves or to be on the lookout for dangerous conditions.

“To state a cause of action for negligence, a Plaintiff must allege (1) the Defendant owed the Plaintiff a duty of care, (2) the Defendant breached that duty, and (3) the breach proximately caused the Plaintiff's damages or injuries. [Citation.] Whether a duty of care exists is a question of law to be determined on a case-by-case basis. [Citation.]” (Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal.App.4th 49, 62.)

“Negligent acts of several persons, each of which contributes proximately to the occurrence of the accident or injury, may give rise to liability on the part of all of the actors. One who is guilty of negligent acts which contribute proximately to the occurrence of the accident or injury may not escape liability upon the ground that the acts of others, whether negligent or not, are also contributing causes.” (De Corsey v. Purex Corp. (1949) 92 Cal.App.2d 669, 675.)

“ ‘The most important of [the] considerations in establishing duty is forseeability.  As a general principle, a ‘ “Defendant owes a duty of care to all persons who are foreseeably endangered by his conduct, with respect to all risks which make the conduct unreasonably dangerous.” ’ ” [Citations.]” (Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 245.)

The Court finds that RCCB owed a general duty to all persons who frequented the subject CVS to not create a risk which could unreasonably endanger them.

The Court also finds that GBCVS owed a duty to all persons entering the CVS store. “It is well established in California that although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe. [Citations.] In order to establish liability on a negligence theory, a Plaintiff must prove duty, breach, causation and damages.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) The elements of a cause of action for premises liability are the same as those for a negligence cause of action: a legal duty of care, breach of that duty, and proximate cause resulting in damages. (Ibid.; Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917-918.)

“When the Court decides the Defendant owed the Plaintiff a duty of ordinary care, the jury then considers the case-specific foreseeability of the Plaintiff’s injury in assessing whether the Defendant breached the duty of ordinary care. [Citation.] An approach in which the Court focuses its duty inquiry on case-specific facts “ ‘would tend to ‘eliminate the role of the jury in negligence cases, transforming the question of whether a Defendant breached the duty of care under the facts of a particular case into a legal issue to be decided by the Court. . . .” ’ ” [Citation.] In short, the legal question of whether to make an exception to the general duty of ordinary care, “ ‘so that the Defendant owed no duty to the Plaintiff, or owed only a limited duty, is to be made on a more general basis suitable to the formulation of a legal rule, in most cases preserving for the jury the fact-specific question of whether or not the Defendant acted reasonably under the circumstances.’ ” [Citation.] (Huang v. The Bicycle Casino, Inc. (2016) 4 Cal.App.5th 329, 342.)

Having found a general duty on the part of RCCB and GBCVS, there exist genuine triable issues of material fact as to whether RCCB actually created the allegedly dangerous condition by placing the subject water bottle on top of the refrigerator, whether RCCB breached its duty of care by placing the subject water bottle on top of the refrigerator horizontally and, if so, whether it was reasonably foreseeable that a person could be injured by doing so. Likewise, genuine triable issues of material fact exist as to whether GBCVS employees breached their duty of care by not inspecting the premises and ensuring that the premises were reasonably safe.

It is also a question of fact for the jury whether those breaches, if any, proximately caused Kimball’s injuries. As to each of these elements, there is conflicting evidence and conflicting inferences that may be drawn. A reasonable trier of fact could determine that it is reasonably foreseeable that a 50 fluid ounce water bottle, stacked horizontally on top of other bottles or the refrigerator, could roll off and strike someone. As such, summary judgment in favor of RCCB or GBCVS will be denied.

Although the parties primarily argue premises liability in their moving and opposing papers: Because the Court will deny the motions for summary judgment based on the existence of triable issues of fact regarding the basic negligence cause of action, it need not consider the cause of action for premises liability. As stated above, a motion for summary judgment is only properly granted if it disposes of the entire action.

            Summary Adjudication

Both RCCB and GBCVS request summary adjudication should the Court not grant Summary Judgment.

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more Defendants either owed or did not owe a duty to the Plaintiff or Plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).)

“If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Cal. Rules of Court, rule 3.1350(b).)

Both RCCB and GBCVS are asking the Court to summarily adjudicate certain issues.

RCCB requests the Court to summarily adjudicate the following:

1. “There is no triable issue of material fact, and the undisputed evidence shows that Plaintiff’s causes of action fail because RCCB did not owe a duty to Plaintiff.”
2. “There is no triable issue of material fact, and the undisputed evidence shows that Plaintiff’s causes of action fail because RCCB had no notice of any dangerous condition.”
3. “There is no triable issue of material fact, and the undisputed evidence shows that Plaintiff’s causes of action fail because Plaintiff cannot prove that RCCB was responsible for causing her injury.”

The Court has already addressed the issue of RCCB’s duty towards Kimball above. The other two issues are issues of breach of RCCB’s duty, rather than duty itself, that are not directed to either specific cause of action contained in the complaint.

“[T]here is no statutory basis for summary adjudication on the issue of breach. We return to the language of Code of Civil Procedure, section 437c, subdivision (f)(1). “ ‘A party may move for summary adjudication as to . . . or one or more issues of duty, if that party contends . . . that one or more Defendants either owed or did not owe a duty to the Plaintiff or Plaintiffs.’ ” A Plaintiff may seek summary adjudication on the existence or nonexistence of a . . . duty [citation], but there is simply no statutory basis for an order summarily adjudicating that a party breached a duty.” (Paramount Petroleum Corp. v. Superior Court, supra, 227 Cal.App.4th at 243-244.)

As such, the issues that relate to breach (notice and proximate cause), cannot be disposed of by way of summary adjudication. To the extent that RCCB intended the motion for summary adjudication to pertain specifically to either of Kimball’s causes of action, neither of the two requests comply with the particular notice requirements of California Rules of Court, rule 3.1350(b) by specifying which cause of action they pertain to.

RCCB’s motion for summary adjudication will be denied.

GBCVS requests the Court to summarily adjudicate the following:

1. There is no triable issue of material fact, and the undisputed evidence shows that Plaintiff’s causes of action fail because Plaintiff cannot prove that a dangerous condition existed.”
2. “There is no triable issue of material fact, and the undisputed evidence shows that Plaintiff’s causes of action fail because there is no evidence suggesting GBCVS had actual or constructive notice of any dangerous condition.”
3. “There is no triable issue of material fact, and the undisputed evidence shows that Plaintiff’s causes of action fail because Plaintiff cannot prove that GBCVS proximately caused her injury.”

GBCVS motion for summary adjudication of these three issues are all related to breach of their duty and will be denied for the same reasons as the second two issues of RCCB’s motion.