Modification: Hassaine v. Club Demonstration Services, Inc.

LILYAN HASSAINE,

Plaintiff and Appellant,

v.

CLUB DEMONSTRATION SERVICES, INC.,

Defendant and Respondent.

No. D079396

(Super. Ct. No. 37-2019-00016440-

CU-PO-CTL)

California Court of Appeal

Fourth Appellate District

Division One

Filed May 18, 2022

ORDER MODIFYING OPINION

AND DENYING REHEARING

NO CHANGE IN JUDGMENT

THE COURT:

It is ordered that the opinion filed on April 22, 2022 be modified as follows:

1. On page 2, the third sentence of the second paragraph, the word "customers" is changed to "Costco shoppers" so that the sentence reads:

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.

2. On page 4, the first two sentences of the first full paragraph beginning with "Believing she slipped" and ending the second sentence with "damages for her injuries" are deleted and inserted with the following:

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.

3. On page 6, the third sentence of the first paragraph, the words "where its customers" are changed to "where Costco customers" so the sentence reads:

Under Danisan, supra, 155 Cal.App.2d 833, 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.

4. At the first full paragraph on page 11, after the first sentence ending "to provide a safe shopping facility," add as footnote 6 the following footnote, which will require renumbering of all subsequent footnotes:

⁶ CDS argues in its rehearing petition that it did not share profits and losses or exercise joint control with Costco to form a single business enterprise. Pointing to language in its agreement with Costco, CDS maintains that the two companies were separate business entities. In addition, CDS claims it did not sell any products to have "customers" of its own. Both contentions miss the mark. We use the phrase "business enterprise" in a general rather than technical sense to evaluate whether there is a special relationship giving rise to a common law duty of care. Even accepting CDS's claim that it had no customers of its own, it owed a duty of care by virtue of its special relationship with Costco customers. Costco customers were CDS's business invitees as persons invited to peruse CDS's sample table offerings. Although CDS is a third party contractor distinct from Costco, we readily conclude it has a special relationship with Costco customers giving rise to a duty of reasonable care.

5. At the fifth sentence of the first full paragraph on page 15, the word "sample" is to be inserted between the words "its" and "customers" so that the sentence reads:

Its lack of a contractual responsibility to maintain the property outside the 12-foot perimeter is not determinative, as CDS impliedly adopted Costco's premises and invited its sample customers to use the Costco aisles.

6. On page 19, first sentence of the second full paragraph, the words "owes its customers" are changed to "owes them" so the sentence reads:

A business does not ensure its customers' physical safety but nonetheless owes them "a duty to exercise reasonable care in keeping the premises reasonably safe."

There is no change in judgment.

Respondent's petition for rehearing is denied.

O'ROURKE, Acting P. J.

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