Borja v. Peking Poultry, Inc., et al.

to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Case Number: 24STCV02290 Hearing Date: August 31, 2026 Dept: 415 Tentative Ruling Judge Rolf M. Treu, Department 415 HEARING DATE: August 31, 2026 TRIAL DATE: March 2, 2027 CASE: Borja v. Peking Poultry, Inc., et al. CASE NO.: 24 STCV02290 MOTION FOR SUMMARY JUDGMENT MOVING PARTY/PARTIES: Defendant Lieng Hoa Seafood & Barbecue, Inc. RESPONDING PARTY/PARTIES: Plaintiff Griselda D. Borja PROOF OF SERVICE: · Plaintiff addresses the merits of Defendant's motion, and thereby waived any procedural objections. (See In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 826.)

CASE HISTORY: · January 29, 2024: Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS: Plaintiff Griselda D. Borja ("Plaintiff") sued Defendant Lieng Hoa Seafood & Barbecue, Inc. ("Defendant") because Plaintiff contends she sustained injuries in a slip and fall accident in the parking lot of the business Defendant owns and operates. Defendant moves for summary judgment on Plaintiff's complaint for negligence and premises liability. Plaintiff opposes the motion.

TENTATIVE RULING: Defendant's motion for summary judgment is DENIED. Moving party to give notice.

DISCUSSION: Motion for summary judgment "[T]he 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[.] There is a triable issue of material fact if, and 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 Co. (2001) 25 Cal.4th 826, 850.)

"[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Ibid.)

Plaintiff's Evidentiary Objections Plaintiff's objections to the Declaration of Mazyar H. Mazarei are overruled. The Court's ruling is based on admissible evidence. (See Code Civ. Proc., Sec. 437c, subd. (q).)

Negligence and premises liability Defendant moves for summary judgment on Plaintiff's complaint for negligence and premises liability. The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) The existence and scope of duty are legal questions for the Court. (Id. at 36.)

In her complaint, Plaintiff alleges that she slipped on a tomato in the parking lot of the premises on which Defendant operates its business. (Complaint, P. 9.) The pleadings set the outer limits of materiality in a summary judgment proceeding. (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382.)

Defendant advances Plaintiff's deposition testimony. At deposition, Plaintiff testified that she slipped on a tomato on the ground in the parking lot of Defendant's business. Plaintiff testified that she did not see any other debris on the ground of the parking lot. Plaintiff testified that the tomato appeared dirty, as if it had been on the ground for some time. Plaintiff testified that she has seen tomatoes for sale at Defendant's business. (Declaration of Mazyar H. Mazarei, Exhibit A, pp. 23, 30-31, 90.)

Defendant also advances the deposition testimony of Nam Chan ("Chan"), Defendant's person most qualified to testify on specified topics. Chan testified that the parking lot belongs to a neighboring business, not to Defendant. Chan testified that Defendant does not maintain or clean the parking area. (Declaration of Mazyar H. Mazarei, Exhibit B, pp. 19, 42.) Chan also testified that Defendant's business does not carry tomatoes. (Declaration of Mazyar H. Mazarei, Exhibit B, pp. 28, 68.)

Defendant argues that Plaintiff does not have evidence of how long the tomato was on the ground, and therefore cannot show that Defendant failed to exercise ordinary care. Defendant's argument is improper. Defendant cannot meet its burden on summary judgment by argument that Plaintiff lacks evidence. Instead, Defendant must produce evidence showing Plaintiff cannot reasonably obtain evidence to support the cause of action. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) Defendant has not advanced evidence to show that Plaintiff cannot obtain evidence regarding how long the tomato was on the ground. Accordingly, this argument fails.

Defendant's own evidence is in conflict regarding the issue of whether Defendant's business carried tomatoes. As Plaintiff testified that Plaintiff saw tomatoes for sale at Defendant's business, the Court cannot conclude that Defendant's business did not carry tomatoes based on the testimony of Chan. In ruling on the motion, "the court may not weigh the plaintiff's evidence or inferences against the defendant['s] as though it were sitting as the trier of fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 856.)

However, Defendant's evidence nonetheless meets its burden to show that Plaintiff cannot prevail on the causes of action for negligence and premises liability, because Defendant did not own or control the parking lot where Plaintiff testified she slipped on the tomato. Defendant shifts the burden to Plaintiff to raise triable issues of material fact as to whether Plaintiff can prevail on the causes of action for negligence and premises liability.

In opposition, Plaintiff advances the lease agreement between Defendant and its landlord. The lease agreement specifies, "No parking pace are included for these premises. Landlord will allow reasonable use of parking lot for deliveries only." (Declaration of Michael D. Levinson, Exhibit 2, p. 1.) As such, the lease agreement reflects that, while the lease does not include use the use of parking spaces, it does include Defendant's use of the parking lot for deliveries.

Furthermore, the lease specifies that Defendant "shall keep in good order, condition and repair the premises and every part thereof, including, . . . all . . . parking lots . . .located in the areas which are adjacent to and included with the premises." (Declaration of Michael D. Levinson, Exhibit 2, p. 4.) As the lease places the obligation on Defendant to keep the parking lot in good condition, this evidence suggests Defendant had control over the parking lot for purposes of ensuring the parking lot was free of debris.

Plaintiff also advances Chan's deposition testimony. At deposition, Chan testified that Defendant's trash bins were across the parking area from the rear door of the premises. (Declaration of Michael D. Levinson, Exhibit 3, p. 47.) This evidence likewise raises the inference that Defendant had some level of control over the parking lot where Plaintiff slipped and fell. As such, Plaintiff's evidence raises triable issues of material fact as to whether Defendant is liable for negligence and premises liability.

Accordingly, Defendant's motion for summary judgment is DENIED. Moving party to give notice. IT IS SO ORDERED.

Dated: August 31, 2026 ___________________________________ Rolf M. Treu Judge of the Superior Court

Any party may submit on the tentative ruling by contacting the courtroom via email at [email protected] by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.

Case Number: 24STCV27659 Hearing Date: August 31, 2026 Dept: 415 Tentative Ruling Judge Rolf M. Treu, Department 415 HEARING DATE: August 31, 2026 TRIAL DATE: Not set. CASE: S David Sedaghat v. Jerry Roles, et al. CASE NO.: 24STCV27659 DEMURRER TO SECOND AMENDED COMPLAINT MOVING PARTY/PARTIES: Defendant State of California RESPONDING PARTY/PARTIES: None PROOF OF SERVICE: · Correct Address: Yes · Served electronically on June 26, 2026 for August 31, 2026 hearing date

CASE HISTORY: · October 22, 2024: Complaint filed. · December 18, 2024: Notice of removal to federal court filed.