Hassaine v. Club Demonstration Servs., Inc.

77 Cal.App.5th 843

293 Cal.Rptr.3d 20

Lilyan HASSAINE, Plaintiff and Appellant,

v.CLUB DEMONSTRATION SERVICES, INC., Defendant and Respondent.

D079396

Court of Appeal, Fourth District, Division 1, California.

Filed April 22, 2022

As Modified on Denial of Rehearing May 18, 2022

Certified for Partial Publication.^*

Law Offices of Nicholas A. Boylan and Nicholas A. Boylan, San Diego, for Plaintiff and Appellant.

England Ponticello & St. Clair, Barry W. Ponticello and Sarah M. Reddiconto, San Diego, for Defendant and Respondent.

DATO, J.

While shopping at the Carmel Mountain Ranch location of Costco Wholesale Warehouse Corporation (Costco) in San Diego, plaintiff Lilyan Hassaine slipped and fell on a slippery substance that she believed was liquid soap. Claiming serious injuries from the fall, she sued Costco and Club Demonstration Services (CDS), an independent contractor that operated food sample tables within the store. The trial court granted a motion for summary judgment filed by CDS, concluding that the company owed Hassaine no duty of care. In the court's view, it was dispositive that CDS's contract with Costco limited its maintenance obligations to a 12-foot perimeter around each sample table, and that Hassaine's fall occurred outside that boundary.

The trial court erred in concluding that CDS's contract with Costco delineated the scope of its duty of care to business invitees under general principles of tort law. Businesses have a common law duty of ordinary care to their customers that extends to every area of the store in which they are likely to shop. (See Danisan v. Cardinal Grocery Stores (1957) 155 Cal.App.2d 833, 318 P.2d 681 ( Danisan ).) While the CDS-Costco agreement may allocate responsibility and liability as a matter of contract between those parties , it does not limit the scope of CDS's common law duty to Costco shoppers. Although CDS protests that this outcome would impose an unreasonable duty covering the entire Costco warehouse, its argument conflates the legal question of duty and the (generally) factual question of whether that duty was breached. Despite having a duty of ordinary care, CDS would have no liability so long as its conduct was reasonable under the circumstances, which include the distance between CDS personnel and the hazard.

In short, CDS owed Hassaine the usual duty of ordinary care codified in Civil Code section 1714. Breach and causation present triable factual issues here, precluding summary judgment on those grounds. We accordingly reverse.

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of October 19, 2018, Hassaine was shopping with her sister-in-law at Costco. While walking down an aisle, she slipped and fell. A Costco surveillance video captured the incident.¹

Hassaine entered the aisle where she would later fall, walking beside her sister-in-law, who pushed a shopping cart. No foreign substance appeared on the floor. The two women stayed in the aisle for about a minute and a half, pulling out various grocery items from the refrigerated display case as they conversed. After they moved on, a dark spot can be seen near where the cart had been located.

Over the next several minutes various people proceeded to walk through the aisle and past the dark spot, including an aproned CDS employee and a Costco employee wearing a baseball cap. Less than seven minutes after leaving the aisle, Hassaine and her sister-in-law returned. The sister-in-law pushed the shopping cart past the spill, as Hassaine walked behind her with items in her hands. As Hassaine stepped near the spill, she fell flat on her back. Her sister-in-law helped her up. Several Costco employees arrived to assist her and wipe the floor.

Hassaine would eventually come to believe she slipped on liquid soap that leaked out of a Softsoap twin-pack carried in the shopping cart. She sued Costco and CDS (erroneously named as Advantage Solutions, Inc.) for negligence and premises liability, seeking compensatory damages for her injuries. CDS moved for summary judgment, arguing that it owed no duty to inspect or maintain the location where Hassaine fell.² To the extent a duty did exist, CDS maintained that Hassaine could not prove breach where only seven minutes elapsed between the spill and her fall. CDS also claimed Hassaine could not demonstrate that any alleged negligence caused her fall where she could not identify what substance caused her to slip or provide "evidence that this substance was in any way related to CDS." In other words, CDS claimed that Hassaine could not establish the essential elements of duty, breach, or causation required to prove negligence and premises liability.

Supporting its motion, CDS lodged a portion of the surveillance video, the "Agreement for Demonstration Services" between Costco and CDS, and excerpts of various depositions and discovery responses. Its lack-of-duty argument turned entirely on the Costco-CDS agreement, which named CDS as an "independent contractor" tasked with providing "demonstration and/or consumer sampling of food and non-food merchandise" within Costco warehouses. The contract defined the " ‘Work Area’ " that CDS had to safely maintain as "a Demo workstation and the adjacent 12 [foot] vicinity." Witnesses testified that based on measurements, Hassaine fell somewhere between 16 and 17 feet from the nearest CDS sample table.

Hassaine challenged CDS on both the law and the facts. Citing Danisan, supra , 155 Cal.App.2d 833, 318 P.2d 681, she argued that CDS owed its invitees a duty of reasonable care irrespective of anything in its private agreement with Costco. Factually, she suggested there remained triable issues of fact as to whether CDS and Costco employees in practice acted as mutual agents for ensuring floor safety; whether the spill had migrated to within a 12-foot perimeter by the time she fell; and whether Costco and CDS's conduct was reasonable under the circumstances. Hassaine offered deposition testimony by several Costco and CDS employees who confirmed that CDS employees typically notified Costco of any visible spills and acknowledged that the video showed a CDS employee twice walk past the spill in the seven minutes before Hassaine fell.

Following oral argument, the court entered a written order granting CDS's motion for summary judgment, concluding Hassaine could not establish that CDS owed her any duty of care:

"Here, Costco contracted with [CDS] to provide product demonstration services. (UMF ¶ 17.) The contract between [CDS] and Costco defines the ‘work area’ as the 12-foot radius of the ‘Demo workstation.’ (Id. ) Thus, based upon the terms of the contract, [CDS] is reasonably responsible for the area within 12-feet of the workstation. (UMF ¶¶ 18, 19, 24.) Here, it is undisputed that the area where [Hassaine] fell was more than 12-feet away from the center of the [workstation]. (UMF ¶ 20.) Thus, based upon the undisputed material facts, [CDS] did not owe [Hassaine] a duty."

DISCUSSION

Hassaine contends the trial court erred as a matter of law in concluding that the Costco-CDS Agreement limited the scope of its duty of care. We agree. Under Danisan, supra , 155 Cal.App.2d 833, 318 P.2d 681, CDS's duty of reasonable care was not limited to its contractually defined work area, but also extended to the areas where Costco customers could be expected to shop. Whether CDS's conduct was reasonable under all the circumstances presents a jury question, as does whether inaction by CDS was a substantial factor in causing her fall. Accordingly, summary judgment was not proper on grounds of duty, breach, or causation.

A. Our Review Is De Novo.

The purpose of summary judgment under Code of Civil Procedure section 437c "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. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 107 Cal.Rptr.2d 841, 24 P.3d 493.) "Summary judgment is appropriate only ‘where no triable issue of material fact exists and the moving party is entitled to judgment as a matter of law.’ " ( Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 618, 230 Cal.Rptr.3d 415, 413 P.3d 656 ( Regents ).) A moving defendant bears the burden to show that the plaintiff cannot establish one or more essential elements of the cause of action, or that there is a complete defense to that cause of action. ( Aguilar , at pp. 849, 853, 107 Cal.Rptr.2d 841, 24 P.3d 493 ; Code Civ. Proc., § 437c, subd. (o )(2).) If the defendant meets this 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 defense thereto." ( Code Civ. Proc., § 437c, subd. (p)(2).) We review an order granting summary judgment de novo, "liberally construing the evidence in support of the party opposing summary judgment and resolving doubts concerning the evidence in favor of that party." ( State of California v. Allstate Ins. Co. (2009) 45 Cal.4th 1008, 1017-1018, 90 Cal.Rptr.3d 1, 201 P.3d 1147.)

The essential elements for both negligence and premises liability are duty, breach, causation, and damages. ( Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205, 114 Cal.Rptr.2d 470, 36 P.3d 11 ( Ortega ); Jones v. Awad (2019) 39 Cal.App.5th 1200, 1207, 252 Cal.Rptr.3d 596.) The trial court concluded that Hassaine was defeated by the first element because CDS did not owe her any duty of care. " ‘Duty, being a question of law, is particularly amenable to resolution by summary judgment.’ " ( Regents, supra , 4 Cal.5th at p. 618, 230 Cal.Rptr.3d 415, 413 P.3d 656.) "Whether a duty exists is a question of law to be resolved by the court." ( Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 213, 276 Cal.Rptr.3d 434, 483 P.3d 159 ( Brown ).) Because the trial court granted summary judgment on the basis of no duty, it did not reach CDS's alternative arguments regarding...