Olivia Marquez v. Brixmor Property Owner II, LLC

Case Number

23CV05011

Case Type

Hearing Date / Time

Wed, 12/11/2024 - 10:00

Nature of Proceedings

Motion of Defendant Brixmor Property Owner II, LLC, for Summary Judgment or for Summary Adjudication

Tentative Ruling

For Plaintiff Olivia Marquez: David Demurjian, Morgan & Morgan, LLP

                                   

For Defendant Brixmor Property Owner II, LLC: Marlon D’Oyen, Christopher E. Barnes, Clinton & Clinton

RULING

For the reasons set forth herein, the motion of Defendant Brixmor Property Owner II, LLC, for summary judgment or, alternatively, for summary adjudication, is denied in its entirety.

Background

Plaintiff Olivia Marquez alleges in her complaint that she suffered personal injuries arising out of an accident that occurred on September 16, 2023, on real property located at 603 North H Street, Lompoc (the Accident Property). (Complaint, ¶ 5.) Marquez further alleges that Defendant Brixmor Property Owner II, LLC “owned, managed, repaired, maintained and/or controlled the [Accident P]roperty or was responsible for designing, constructing, maintaining, cleaning, repairing, or managing the [Accident P]roperty ….” (Complaint, ¶ 7.) While using the Property, Marquez tripped and fell on the raised corners that surround pump No. 8. (Complaint, ¶ 11.)

On May 18, 2022, Brixmor and Moller Retail Inc. (Moller) entered into a Lease Agreement (Lease) by which Moller leased from Brixmor the property located at 729 North H Street (Highway 1) & Pine Ave, Lompoc, CA 93436 (Leased Property), which Moller later developed into a Conserv Fuel gas station. (Plaintiff’s Response Separate Statement [PSS], undisputed fact 1.) (Note: There is an unexplained discrepancy between the location of the Accident Property as alleged in the complaint and the location of the Leased Property. Because Plaintiff does not dispute that the accident occurred at the Leased Property [PSS, undisputed fact 13], the court assumes that both addresses relate to the same physical location so that the Accident Property and the Leased Property are the same and each is subsequently referred to herein as the “Property,” “Demised Land,” or “Demised Premises.”)

The Lease includes the following text:

“It shall be the responsibility of Tenant, and not Landlord to do any and all work on

the Demised Land to ready the same for Tenant’s use and occupancy and to equip the Demised Premises with new trade fixtures and all personal property necessary or proper for the operation of Tenant’s business.” (Lease, § 3.3 [PSS, undisputed fact 2; Barnes decl., exhibit A (partial Lease); Demurjian decl., exhibit A (Lease)].)

“Tenant shall prepare construction documents for Tenant’s Initial Work (‘Tenant’s Plans’) within 30 days of the Effective Date (the ‘Submission Date'’) and shall submit the same to Landlord for Landlord’s review and approval, which such approval shall not be unreasonably withheld conditioned or delayed. Landlord agrees that it will respond to such submission (including any required re-submission thereof) in writing on or before the date (the ‘Response Date’) that is ten (10) business days following Landlord's receipt thereof, provided that, in each instance, such submission shall have been accompanied by a written transmittal letter to Landlord, Attention: Brian Kriz, Senior Project Manager Construction, specifying that, pursuant to Section 6.3 of this Lease, Landlord has agreed to respond to such submission of plans and specifications in writing with an approval, disapproval and/or suggested or required revisions thereto on or before the Response Date. The failure of Landlord to respond to Tenant within such 10-day period shall result in the constructive approval of said plans by Landlord ….” (Lease, § 6.3; Demurjian decl., exhibit A.)

“Tenant shall not commence any of Tenant’s Initial Work until Landlord has approved Tenant’s Plans as set forth herein.” (Lease, § 6.4; Demurjian decl., exhibit A.)

“All work performed by Tenant at the Demised Premises, including without limitation, Tenant’s Initial Work, shall meet the following requirements: … (b) Tenant shall abide by all applicable building codes, laws, and ordinances, including without limitation all Environmental Laws (as defined in Section 20.30) and all insurance requirements and Tenant shall provide to Landlord adequate evidence of insurance prior to the commencement of any work at the Demised Premises ….” (Lease, § 6.5(b); Demurjian decl., exhibit A.)

“Except to the extent any such damage is caused by the gross negligence or willful misconduct of Landlord or its contractors, licensees, agents, servants or employees, but subject to the provisions of Section 15.2 below, Landlord shall have no obligation of any kind, nature or description with respect to repairing, replacing or rebuilding any portion of the Demised Premises (land or structures). It shall be the sole and complete responsibility of Tenant to maintain the Demised Premises in a good and tenantable condition at all times during the Term of this Lease.” (Lease, § 12.1; PSS, undisputed fact 3.)

“Except as specifically herein otherwise provided, Tenant agrees that from and after the Possession Date, and continuously thereafter until the end of the Term hereof, it will keep neat and clean and maintain in good order, condition and repair, the Demised Premises and every part thereof, including, without limitation, the storefront and the exterior and interior portions of all doors, windows, plate glass and showcases surrounding the Building, all portions of the Fueling Facilities, all plumbing and sewage facilities within the Demised Premises, fixtures and interior walls, floors, ceilings, signs (including exterior signs where permitted) and all wiring, electrical systems, interior building appliances, HVAC systems and equipment and similar equipment, the structural walls, the roof and the slab of the Building, the parking areas, drive aisles, lighting, landscaping and other portions of the Related Improvements. Tenant further agrees that the Demised Premises shall be kept in a clean, sanitary and safe condition in accordance and shall in all respects comply with all applicable laws and other governmental agencies having jurisdiction thereover. Tenant shall not permit or commit any waste.” (Lease, § 12.2; PSS, undisputed fact 4.)

“Tenant shall not make any structural or exterior (including, without limitation, storefront of the Building) alterations, improvements and/or additions to the Demised Premises (except as initially required by the terms of ARTICLES III and VI of this Lease) without first obtaining, in each instance, the written consent of Landlord. … In any event any such alterations, improvements and additions by Tenant shall be made in accordance with all applicable laws and in a good and first-class, workmanlike manner and in accordance with this Lease, including without limitation Article VI.” (Lease, § 12.3; PSS, undisputed fact 5.)

“Except to the extent caused by any gross negligence or willful misconduct of Landlord or its contractors, licensees, agents, servants or employees, but subject to

the provisions of Section 15.2 below, Tenant agrees to indemnify, defend with counsel reasonably acceptable to Landlord and save harmless Landlord, Landlord’s managing agent(s), and Landlord’s mortgagee(s), if any, from and against all claims of whatever nature arising from any act, omission or negligence of Tenant, or Tenant’s contractors, licensees, agents, servants, or employees, or arising from any accident, injury, or damage whatsoever caused to any person, or to the property

of any person, or from any violation of applicable law including, without limitation, any law, regulation, or ordinance concerning trash, hazardous materials, or other pollutant occurring from and after the Possession Date until the end of the Term within the Demised Premises, or arising from any accident, injury or damage occurring outside of the Demised Premises but within the Shopping Center. This indemnity and hold harmless agreement shall include indemnity against all costs, expenses and liabilities incurred in or in connection with any such claim or proceeding brought thereon, and the defense thereof.” (Lease, § 13.1(a); PSS, undisputed fact 6.)

“Tenant agrees to use and occupy the Demised Premises and to use such other portions of the Shopping Center as it is herein given the right to use at its own risk; and except to the extent caused by the gross negligence or willful misconduct of Landlord or its contractors, licensees, agents, servants or employees, but subject to the provisions of Section 15.2 below, that Landlord shall have no responsibility or liability for any loss of or damage to Tenant’s leasehold improvements or to fixtures or other personal property of Tenant or those claiming by, through or under Tenant. The provisions of this Section shall apply from the Possession Date until the expiration of the Term.” (Lease, § 13.3; PSS, undisputed fact 7.)

“Landlord and its designees shall have the right to enter upon the any portion of the Demised Premises (including the Building) during Tenant’s posted business hours upon no less than 24-hours written notice to Tenant (except in the event of emergencies wherein no such prior notice shall be required) for the purpose of inspecting or surveying the condition of, or making repairs or improvements to the same or exhibiting the same to prospective purchasers and lenders. If repairs are required to be made by Tenant pursuant to the terms hereof or if Tenant is required to perform any other obligation under this Lease, Landlord may demand that Tenant make such repairs or perform such obligation forthwith, and if Tenant refuses or neglects to commence such repairs or performance and complete the same with reasonable dispatch, after such demand, Landlord may (but shall not be required to) make or cause such repairs or performance to be done and shall not be responsible to Tenant for any loss or damage that may accrue to its stock or business by reason thereof. If Landlord makes or causes such repairs or performance to be done, or endeavors so to do, Tenant agrees that it will forthwith, on demand, pay to Landlord the cost thus incurred, and if Tenant shall default in such payment, Landlord shall have the remedies provided in ARTICLE XIX hereof.” (Lease, § 14.1; Demurjian decl., exhibit A.)

At some point between May 18, 2022, and the date of the incident, September 16,

2023, Moller installed on the premises raised, beveled concrete footings atop which individual fuel pump stations were placed. The concrete footing beneath each pump is formed in the shape of a trapezoidal prism. (PSS, undisputed fact 8.)

According to Brixmor, under sections 3.3 and 12.3 of the Lease, Moller was not obligated to obtain the written consent of Defendant prior to its installation of the raised, beveled concrete footing on which Plaintiff is alleged to have sustained injury. (Defendant’s Separate Statement [DSS], fact 9.) According to Marquez, these provisions require prior written consent. (PSS, response to fact 9.)

Brixmor neither received notice of nor approved Moller’s construction of the raised, beveled concrete footing on which Marquez is alleged to have sustained injury. (PSS, undisputed fact 10.) Brixmor did not enter into an agreement with a third-party contractor regarding the construction of the raised, beveled concrete footing on which Marquez is alleged to have sustained injury. (PSS, undisputed fact 11.)

According to Brixmor, Brixmor did not control, manage, or supervise construction of the raised, beveled concrete footing on which Marquez is alleged to have sustained injury. (DSS, fact 12; Lee decl., ¶ 6.) According to Marquez, under section 12.3 of the Lease, Brixmor controlled the construction because its prior written consent was required. (PSS, response to fact 12.)

On September 16, 2023, Marquez and her daughter stopped at the subject Conserv

Fuel gas station. (PSS, undisputed fact 13.) While refueling her vehicle, Marquez allegedly “tripped and fell on the raised corners that surround pump No. 8,” injuring herself. (Ibid.)

On November 9, 2023, Marquez filed her complaint in this action against Brixmor asserting two causes of action: (1) negligence; and (2) premises liability.

On December 15, 2023, Brixmor filed its answer to the complaint, generally denying the allegations thereof and asserting 30 affirmative defenses.

On September 18, 2024, Brixmor filed this motion for summary judgment, or alternatively for summary adjudication with respect to the causes of action for negligence and premises liability, on the grounds that Marquez cannot establish the necessary elements of the causes of action. (Notice, at p. 2.)

The motion is opposed by Marquez.

Analysis

(1)       Standards and Procedural Issues

“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., § 437c, subd. (a)(1).)

“The motion for summary judgment shall be granted 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 a judgment as a matter of law. In determining if the papers show that there is no triable issue as to any material fact, the court shall consider all of the evidence set forth in the papers, except the evidence to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue as to any material fact.” (Code Civ. Proc., § 437c, subd. (c).)

“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).)

“A Defendant … 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, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action. 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. The Plaintiff … shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).)

“[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) There is no obligation on the opposing party to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element necessary to sustain a judgment in his favor. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.)

“But other principles guide us as well, including that ‘[w]e accept as true the facts … in the evidence of the party opposing summary judgment and the reasonable inferences that can be drawn from them.’ [Citation.] And we must ‘ “view the evidence in the light most favorable to Plaintiff[] …’ and “liberally construe Plaintiff[’s] evidentiary submissions and strictly scrutinize Defendant[’s] own evidence, in order to resolve any evidentiary doubts or ambiguities in Plaintiff[’s] favor.” ’ [Citation.]” (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 254.)

Brixmor styles its motion as a motion for summary judgment or in the alternative for summary adjudication. “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).)

“The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:

            “(A)     Each cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion; and

            “(B)     Each supporting material fact claimed to be without dispute with respect to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion.” (Cal. Rules of Court, rule 3.1350(d)(1).)

Brixmor’s separate statement is ambiguous. The introduction states that, in addition to summary judgment, it relates to “Plaintiff’s cause of action for negligence, negligent infliction of emotional distress, and premises liability,” although Marquez does not assert a cause of action for negligent infliction of emotional distress. Above separate statement fact 1, Brixmor states that it is “as to Issue No. 1: Plaintiff’s causes of action for Negligence/ Premises Liability.” There is no other issue or list of facts. The court construes the separate statement facts as the entire list of facts applying to each requested adjudication and to the request for summary judgment.

Another ambiguity is the nature of the adjudication sought. A moving Defendant may shift the burden on a motion for summary adjudication either by negating an essential element of the Plaintiff’s cause of action or by showing that the Plaintiff cannot establish an essential element of the Plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 853.) “The Defendant has shown that the Plaintiff cannot establish at least one element of the cause of action by showing that the Plaintiff does not possess, and cannot reasonably obtain, needed evidence: The Defendant must show that the Plaintiff does not possess needed evidence, because otherwise the Plaintiff might be able to establish the elements of the cause of action; the Defendant must also show that the Plaintiff cannot reasonably obtain needed evidence, because the Plaintiff must be allowed a reasonable opportunity to oppose the motion [citation.].” (Id. at p. 854.) “Summary judgment law in this state, however, continues to require a Defendant moving for summary judgment to present evidence, and not simply point out that the Plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Ibid., fn. omitted.)

None of Brixmor’s separate statement facts, individually or collectively, show that Marquez does not possess and cannot reasonably obtain needed evidence. Consequently, notwithstanding the ambiguity in the notice, the court understands the motion as relying solely on the “negation” approach. To the extent that Brixmor otherwise argues that Marquez cannot establish a cause of action, Brixmor fails in its initial burden.
 

(2)       Summary Adjudication

“The elements of a negligence claim and a premises liability claim are the same: a legal duty of care, breach of that duty, and proximate cause resulting in injury.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)

Brixmor argues that because it is the landlord of leased premises, “ ‘the Plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.’ ” (Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 612, citation omitted.) Brixmor argues that Marquez cannot show that Brixmor had knowledge. (Motion, at pp. 8-10.)

The undisputed evidence is that, at the time of Marquez’s accident, Brixmor leased the Property to Moller. It is also undisputed that the alleged dangerous condition (Condition) was not present on the Property at the time of the commencement of the Lease. It is further undisputed that Brixmor neither received notice nor approved of the construction of the Condition, and that Brixmor did not enter into any agreement with a third party for construction of the Condition. Brixmor also presents evidence that it did not control, manage, or supervise the construction of the Condition. (Lee decl., ¶ 6.) Even taking this as undisputed (but see the discussion below), Brixmor could have obtained knowledge of the Condition from another source, such as by inspection. The separate statement facts do not include any facts that Brixmor had no prior knowledge of the Condition. (See California-American Water Co. v. Marina Coast Water Dist. (2022) 86 Cal.App.5th 1272, 1296–1297 [separate statement must contain all material facts].)

Brixmor thus fails to negate its own knowledge of the Condition. To the extent that Brixmor’s motion is based upon Plaintiff’s obligation to prove Brixmor’s knowledge of the Condition, Brixmor fails in its initial burden on summary adjudication.

Brixmor also argues that Moller assumed the duty to keep the Premises in a reasonably safe condition. (Motion, at pp. 10-11.) It is undisputed that the Lease contains terms by which Moller contractually undertook general responsibility to keep the Premises in a reasonably safe condition and to assume the risk of loss by reason of damage to a third party. These contractual obligations are between Brixmor and Moller, but do not necessarily determine Brixmor’s obligations as to Marquez. (See Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 714–715.)

But in any case, there are triable issues which preclude summary adjudication of any cause of action. For example, Brixmor’s separate statement fact 12 is: “Defendant did not control, manage, or supervise construction of the raised, beveled concrete footing on which Plaintiff is alleged to have sustained injury.” This fact is disputed, under the standards applicable to summary adjudication, by paragraph 12.3 of the Lease, which, as quoted above, prohibited Moller from making any alterations or improvements without first obtaining the written consent of Brixmor. (See Code Civ. Proc., § 437c, subd. (c) [conflicting inferences create triable issue of fact].) The requirement to obtain approval and Brixmor’s right to provide that approval is a form of control over the construction.

Additionally, separate statement fact 9 is: “Per sections 3.3 and 12.3 of the Lease,

Moller Retail Inc. dba Conserve Fuel was not obligated to obtain the written consent of Defendant prior to its installation of the raised, beveled concrete footing on which Plaintiff is alleged to have sustained injury.” This fact is disputed by sections 3.3 and 12.3 of the Lease, as quoted above. There is evidence presented that the Condition is an alteration to the Property. (PSS, undisputed facts 8, 13 [the footings were installed by Moller and not pre-existing].) Section 12.3 expressly requires written consent unless certain exceptions apply. No evidence is presented that an exception applies. This separate statement fact is thus disputed.

“ ‘[T]he separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!’ ” (Nazir v. United Airlines, Inc., supra, 178 Cal.App.4th at p. 252, quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) ¶ 10:95.1, p. 10-35 (rev. # 1, 2009).)

Because the separate statement facts apply to both requested adjudications, the motion for summary adjudication and for summary judgment will be denied.