Lopez v. Superior Court

• Decision Date: 14 May 1996
• Docket Number: No. B095244,B095244
• Citation: 52 Cal.Rptr.2d 821,45 Cal.App.4th 705
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 3444, 96 Daily Journal D.A.R. 5559 Frances LOPEZ, Petitioner, v. The SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent; FRIEDMAN BROTHERS INVESTMENT COMPANY, Real Party in Interest.

Page 821

52 Cal.Rptr.2d 821

45 Cal.App.4th 705, 96 Cal. Daily Op. Serv. 3444,

96 Daily Journal D.A.R. 5559

Frances LOPEZ, Petitioner, v. The SUPERIOR COURT of the State of California for the County of Los Angeles, Respondent FRIEDMAN BROTHERS INVESTMENT COMPANY, Real Party in Interest.

No. B095244.

Court of Appeal, Second District, Division 7, California.

May 14, 1996.

[45 Cal.App.4th 709] Manuel H. Miller, Woodland Hills, for Petitioner.

No appearance for Respondent.

Nouskajian & Cranert and Terrence L. Cranert, South Pasadena, for Real Party in Interest.

LILLIE, Presiding Justice.

We treat this appeal by Frances Lopez from a minute order granting summary judgment on her complaint in favor of defendant Friedman Brothers Investment Company (Friedman) as a petition for writ of mandate. ¹ The primary issue before us is whether Friedman, the owner and lessor of the commercial premises where Lopez allegedly fell, established it was entitled to judgment as a matter of law.

FACTUAL AND PROCEDURAL BACKGROUND

Lopez and Friedman agree that the following facts are undisputed: Friedman owned about 25 acres of farmland upon which stood a produce stand, Hubbard Farms, operated by Sam and Pina Scattaglia under a lease executed in 1977. The term of the lease was for one year, but the lease was renewed on an annual basis thereafter, up to and including the time of Lopez's slip and fall in 1991. Pursuant to the terms of the lease, the Scattaglias were entitled to farm the land and sell the harvested produce at the stand; the lease permitted the lessees, at their expense, to erect a small building for selling the produce, which improvement was to become part of the realty and belong to the lessor. The lease also provided that the lessor "shall have the absolute right to enter upon the premises at any time for the purpose of inspecting the same, or for the purpose of posting Notices of Non-Liability, or for any other reasonable purpose."

At least 10 years prior to Lopez's accident in May 1991, the Scattaglias erected a small market, which had a concrete floor. Although the Scattaglias were in possession of the premises on the day of the accident, they had in the prior ten years subleased the market to Albert Dibb, Jr., for a five-year period and had then subleased the market to a Korean couple for about a year; at the time of plaintiff's accident, the Scattaglias had taken the premises back from the Korean couple and Albert Dibb was working at the store as the Scattaglias' employee.

Three to four times per week prior to her accident, Lopez was a regular shopper at Hubbard Farms; according to her husband, neither he nor his wife had ever slipped and fallen at Hubbard Farms; on May 23, 1991, Mr. Lopez waited in their truck while Mrs. Lopez entered the market and walked back to find some lettuce; finding no lettuce, she picked up a bag of tortillas, went to the register, and paid for her items; as she was in the doorway leaving Hubbard Farms, she stepped on some grapes on the floor and slipped and fell; Lopez did not see the grapes before stepping on them; after her fall, she saw that her shoe was wet from the grapes which were smashed on the floor; her husband saw five or six smashed grapes on the floor.

According to the declaration of Albert Friedman, a partner of Friedman, Friedman made no improvements to the property for purposes of operation of Hubbard Farms and was not involved in any way in the operation of Hubbard Farms, or in the installation of the cement floor at Hubbard Farms; other than Lopez's accident, he was not aware of any other personal injury accident occurring at Hubbard Farms.

According to the deposition testimony of a witness, Bonifacio Gutierrez, in 1991, before the accident, he observed the floor of Hubbard Farms to be wet because the refrigerator was leaking water, which ran from underneath the refrigerator downhill towards the front door of the store and the parking lot; every time he went to the store, he saw grapes on the floor, but he could not remember specifically whether he saw any grapes on the floor on the day of Lopez's accident.

In January 1992, Lopez filed her complaint for personal injuries and damages against Friedman and Hubbard Farms, asserting theories of negligence and premises liability; she alleges that defendants "failed to repair, examine, investigate, inspect, make safe, clean or otherwise maintain or cause to be maintained a certain business premises commonly known as Hubbard Farms"; that defendants "negligently managed, owned, controlled, and operated the subject business premises in that the floors of the subject premises were slippery and littered with produce, glass, and other materials, refuse and debris, which defendants knew, or in the exercise of reasonable care should have known, constituted a dangerous condition and unreasonable risk of harm of which plaintiff was at all times mentioned unaware"; and that defendants "negligently failed to take steps to either make the condition safe or warn plaintiff of the dangerous condition."

Friedman filed motion for summary judgment, supported primarily by the declaration of Albert Friedman and excerpts of the depositions of Lopez and her husband. Friedman contended that as a lessor out of possession, it was entitled to summary judgment because there was no evidence that Friedman had actual notice of the dangerous condition of the floor, the alleged dangerous condition was not created by any employee of Friedman, and there was no evidence of any prior slip and fall. Further, Friedman contended that "plaintiff has no evidence to support her claim that the alleged grape on the ground was on the floor a sufficient amount of time to trigger defendant's constructive notice of the dangerous condition," and "there is no reasonable inspection that landowner Friedman, as a lessor out of possession and without control over the produce stand, could have performed which would have revealed this particular dangerous condition."

In opposition to the motion, Lopez contended that the cement floor of the market was improperly constructed and finished so that when it was covered with leaking water or fruit, it became unreasonably dangerous; Friedman's lease permitted it to enter the premises at any time for inspection, or for any reasonable purpose; all construction, including the market, required the prior written consent of the landlord; the lease for one year was subject to annual renewal, and was annually renewed through the time of the accident. Lopez contended triable issues of fact remained as to whether Friedman was negligent in failing to inspect, or to conduct a reasonable inspection, to discover the dangerous condition of the floor, and as to the foreseeability of injuries to customers of its tenant from such condition.

After hearing on the motion, the trial court granted the motion. The minute order states in pertinent part: "Moving party has shown that it is the lessor of commercial property ..., that it did not conduct any operations on the property in question ..., that plaintiff allegedly slipped on grapes ..., and that plaintiff doesn't know how long the grapes had been there. This is sufficient to shift the burden to plaintiff to show that a factual issue exists. While plaintiff has contested some of the facts relied upon by moving party, there has been no showing that there is evidence to indicate that moving party had any actual or constructive notice of the condition that purportedly caused her accident. Rather, the gist of plaintiff's opposition is that a commercial lessor may be held liable for dangerous conditions on the premises and has a duty to inspect. The cases relied upon are inapplicable to this case, involving transient conditions as opposed to circumstances where the dangerous condition was of an unchanging and ongoing nature. There is no showing that any reasonable inspection required of a commercial lessor would have given notice of the condition complained of or that moving party in any way had actual notice." Lopez filed timely notice of appeal from "the Summary Judgment filed on or about June 22, 1995." We address the merits of the arguments raised in the parties' briefs by deeming the appeal to be a petition for writ of mandate. (Fn.1, ante.)

I STANDARD OF REVIEW

"Summary judgment is granted when there is no triable issue as to any material fact and the moving party is entitled to judgment as a matter of law. (§ 437c, subd. (c).) We review the trial court's decision to grant [defendant] summary judgment de novo." (Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1285, 44 Cal.Rptr.2d 335.) We are governed by the 1993 amendments to Code of Civil Procedure section 437c; Friedman's burden "could be met only by showing 'that one or more elements of the cause of action ... cannot be established, or that there is a complete defense to that cause of action.' (§ 437c, subd. (o)(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 that cause of action....' " (Id. at pp. 1285-1286, 44 Cal.Rptr.2d 335, fn. omitted.)

As noted by the court in Hunter v. Pacific Mechanical Corp., supra, 37 Cal.App.4th 1282, 44 Cal.Rptr.2d 335, the 1992 and 1993 amendments to section 437c were intended to apply a particular burden-shifting characteristic of the federal procedure to California summary judgment motions: " 'Now, a moving defendant may rely on factually devoid discovery responses to shift the burden of proof pursuant to section 437c, subdivision (o)(2). Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact.' " (Id. at p 1287, 44 Cal.Rptr.2d 335.) Under federal law, "the moving party always bears the initial burden of establishing the absence of a genuine...