Filed 9/17/12 Campos v. Super Center Concepts CA2/7
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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
SEVEN
ALVINO CAMPOS et al.,
Plaintiffs and
Appellants,
v.
SUPER CENTER CONCEPTS, INC.,
Defendant and Respondent.
B234264
(Los Angeles
County
Super. Ct.
No. BC426413)
APPEAL from
a judgment of the Superior Court
of
County, Elizabeth Allen White, Judge. Affirmed.
Wang, Shin
& Associates, Christian Shin, and Willie Wang, for Plaintiffs and
Appellants.
Lewis
Brisbois Bisgaard & Smith, Raul L. Martinez and Esther P. Holm, for
Defendant and Respondent.
Billie Padilla fell while pulling out a jammed shopping
cart at the supermarket and died after surgery for a fractured femur. Her husband, Alvino Campos, and other family
members sued the market, as well as various health care providers, for wrongful
death and related torts. The trial court
granted the market’s motion for summary judgment, concluding Campos
could not establish the market had breached its duty of care. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1.
On August 21, 2008 Padilla was walking
with Campos toward the entrance to
Superior Super Warehouse in Long Beach
and stopped to remove a shopping cart from a row of carts in the parking
lot. As Campos
walked ahead, he heard Padilla scream, “I fell.†Campos
turned around and saw Padilla lying on the ground six or seven feet from an
overturned cart. When Campos
went to her, Padilla said, “The baskets were stuck, and I went down.†Padilla did not describe any other details of
the accident and did not indicate anything was wrong with the shopping
cart. Campos
did not notice anything wrong either.
There were no witnesses to the incident.
Paramedics
arrived on the scene and transported Padilla to Long
Beach Memorial Medical
Center. The following day, she was transferred to a
Kaiser medical facility and underwent surgery for a fracture of her right
femur. On August 23, 2008, while still a patient at Kaiser, Padilla
died.
2.
On November 19, 2009 Campos
filed a lawsuit against Super Center Concepts, Inc., the owner of Superior
Super Warehouse (Superior),
causes of action: (1) wrongful death,
(2) loss of consortium, (3) premises liability and (4) general negligence.
proximate result of Superior’s
failure to properly maintain the shopping carts. The complaint also alleged Superior
owed Padilla an affirmative duty to ensure her safety and failed to exercise
ordinary care in managing the premises, exposing her to an unreasonable risk of
harm.
On January 26, 2011 Superior
moved for summary judgment. In support
of its motion Superior submitted Campos’s deposition and argued Campos had
acknowledged there were no known witnesses to Padilla’s fall and admitted he
had no evidence the shopping carts were defective or dangerous or any condition
on the property had created an unreasonable risk of harm. Superior
further argued there was no evidence it knew or should have known about a
dangerous condition at the market and, therefore, it had not breached its duty
to maintain reasonably safe premises.
In his
opposition papers Campos argued,
because he and Padilla had never encountered problems with the shopping carts
in their previous visits to Superior,
the doctrine of res ipsa loquitur permitted an inference of Superior’s
negligence. Application of this
doctrine, Campos contended, shifted
the burden to Superior to produce
evidence it had not been negligent, which Superior
failed to do.
3.
Judgment
Prior to
the hearing on Superior’s motion,
the court issued a tentative ruling to grant summary judgment, indicating the
res ipsa loquitur doctrine did not apply. The tentative ruling explained none of the
requirements for application of res ipsa loquitur was present
inference was Padilla “pulled on the cart to free it, stumbled when it finally
freed, and she took the cart down with her while she fell.â€
After
hearing argument, the court granted the motion.
It found Superior had met
its initial burden by demonstrating Campos
had no evidence to establish Superior
had breached its duty of care, an essential element of his premises liability
and negligence causes of action. During
the hearing itself, in addition to the issue of breach, the court commented
liability should not extend to Superior because it is not “reasonably
foreseeable that somebody is going to, in the process of unsticking two
shopping carts that happen to have jammed together, is going to fall and die as
[Padilla] did.â€
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DISCUSSION
1.
Summary
judgment is properly granted when “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, subd. (c).) We
review a grant of summary judgment de novo and decide independently whether the
facts not subject to triable dispute warrant judgment for the moving party as a
matter of law. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1348;
Cal.4th 317, 334.)
When a
defendant moves for summary judgment in a situation in which the plaintiff
would have the burden of proof at trial by a preponderance of the evidence, the
defendant may, but need not, present evidence that conclusively negates an
element of the plaintiff’s cause of action.
(Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 853 (Aguilar).) Alternatively, the defendant may present
evidence to “show[] that one or more elements of the cause of action . . .
cannot be established†by the plaintiff.
(Code Civ. Proc., § 437c, subd. (p)(2); see Aguilar, at p. 853.) A
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.â€
(Aguilar, at p. 854; see
31 Cal.4th 990, 1002-1003 [“[T]he defendant must present evidence that would
preclude a reasonable trier of fact from finding that it was more likely than
not that the material fact was true [citation], or the defendant must establish
that an element of the claim cannot be established, by presenting evidence that
the plaintiff ‘does not possess and cannot reasonably obtain, needed
evidence.’â€].) Once the defendant’s
initial burden has been met, the burden shifts to the plaintiff to demonstrate,
by reference to specific facts not just allegations in the pleadings, there is
a triable issue of material fact as to the cause of action or defense. (Code Civ. Proc. § 437, subd. (p)(2);
On review
of an order granting summary judgment, we view the evidence in the light most
favorable to the opposing party, liberally construing the opposing party’s
evidence and strictly scrutinizing the moving party’s. (O’Riordan
v. Federal Kemper Life Assurance Co. (2005) 36 Cal.4th 281, 284.)
2.
The Trial
Court Properly Granted Summary Judgment
To prevail
on his causes of action for negligence and premises liability, Campos
must establish that Superior owed
Padilla a duty, that it breached the duty, and that the breach was a proximate
cause of Padilla’s death. (
Cal.4th 763, 767.) A store owner owes
its customers a duty of care to keep the premises reasonably safe. (Ortega
v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) The exercise of ordinary care may require the
owner to take precautions to safeguard against a dangerous condition; but
“[b]ecause the owner is not the insurer of the visitor’s personal safety
[citation], the owner’s actual or constructive knowledge of the dangerous
condition is key to establishing its liability.†(Id.
at p. 1206)
a. Superior met its initial burden on the element of breach of duty
Citing Campos’s
discovery responses, Superior
contended Campos could not
establish the element of breach of duty required for his premises liability and
negligence causes of action. Campos
conceded he possessed no evidence of a dangerous or defective shopping cart or
any other condition on the premises presenting an unreasonable risk of
harm. (See Aguilar, supra, 25 Cal.4th at p. 855 [defendant can show
plaintiff’s lack of evidence “through admissions by the plaintiff following
extensive discovery to the effect that he has discovered nothingâ€].) Campos
also admitted no one had witnessed Padilla’s fall. Thus, Superior
met its initial burden by showing Campos
did not possess, and could not reasonably obtain, evidence of any negligence
(breach of duty) by Superior.
b.
breach of duty by Superior
In
opposition to Superior’s initial showing
of an absence of evidence of breach of duty, Campos
insisted Padilla’s statement, “The baskets were stuck, and I went down,†was
evidence of a dangerous condition on Superior’s
premises.
claim that two shopping carts stuck together, without more, creates an
unreasonable risk of harm or otherwise constitutes a dangerous condition. (See Bridgman
v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 448 [“the basic principle to
be followed in [situations where a dangerous condition may occur] is that the
owner must use the care required of a reasonably prudent man acting under the
same circumstancesâ€].) Moreover, even if
we were to consider jammed shopping carts a dangerous condition, Campos
presented no evidence Superior was
on notice of the condition. (See
at p. 1206; see also Hatfield v. Levy
Bros. (1941) 18 Cal.2d 798, 806 [“[T]he owner must have either actual or
constructive knowledge of the dangerous condition or have been able by the
exercise of ordinary care to discover the condition . . . . [N]egligence in such cases is founded upon
his failure to exercise ordinary care in remedying the defect after he has
discovered it or a man of ordinary prudence should have discovered it.â€].) To the contrary, Campos
himself testified the shopping carts normally were not stuck or jammed together
at the market. He presented no evidence
indicating how long these two carts had been stuck or suggesting Superior
should have been aware of the situation.
Given the
complete lack of evidence of any negligence by Superior,
the trial court properly granted its motion for summary judgment.
DISPOSITION
The
judgment is affirmed. Super Center
Concepts, Inc. is to recover its costs on appeal.
PERLUSS,
P. J.
We concur:
WOODS,
J.
JACKSON,
J.
litem for his and Padilla’s child, Nicole Marina Campos. The other named plaintiff was Beliana Padilla
Kapusta (Padilla’s adult daughter), who sued on her own behalf and as guardian
ad litem for two children under
Padilla’s care, Matthew Joseph Aguilar and Ashley Nicole Aguilar. For convenience, we refer to plaintiffs
collectively as Campos.
action for medical malpractice against the hospitals and 18 doctors and health
care providers. That claim was
subsequently dismissed.
