Judge: Anne Hwang, Case: 21STCV36890, Date: 2024-06-28 Tentative Ruling

Case Number: 21STCV36890    Hearing Date: June 28, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOVING PAPERS

1.      Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities

2.      Separate Statement of Facts in Support

3.      Declaration of Marlon D’Oyen

4.      Declaration of Damien Osip

5.      Declaration of Nelson Joval

6.      Appendix of Evidence in Support

OPPOSITION PAPERS

1.      Plaintiff’s Memorandum of Points and Authorities in Opposition; Declaration of Gevork Gazaryan

2.      Plaintiff’s Opposition to Defendant’s Separate Statement

3.      Plaintiff’s Objections to Evidence

4.      Plaintiff’s Appendix of Evidence in Opposition 

REPLY PAPERS

1.      Defendants’ Reply

2.      Response Separate Statement

3.      Objections

BACKGROUND

On October 6, 2021, Plaintiff Sawsan Rasheed (“Plaintiff”) filed a complaint against Defendants Township Retail Services, Incorporated, Del Amo Fashion Center Operating Company, LLC, and Does 1 to 50 for negligence and premises liability. Plaintiff alleges that on October 21, 2019, she was walking on premises at 3525 W Carson St., Torrance, CA (at the Del Amo Fashion Center), when she slipped on an unknown substance and fell. (Complaint, 4, 5.) Plaintiff alleges Defendants had custody and control of the premises.

Defendants Township Retail Services, Incorporated and Del Amo Fashion Center Operating Company, LLC (“Defendants”) now move for summary judgment arguing that Plaintiff cannot establish the condition she slipped on was dangerous or that Defendants had notice. Plaintiff opposes,[1] and Defendant replies.

LEGAL STANDARD

“[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.; Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar apply to summary adjudication motions].)  Further, in line with Aguilar v. Atlantic Richfield Co., “[o]n a motion for summary adjudication, the trial court has no discretion to exercise.  If a triable issue of material fact exists as to the challenged causes of action, the motion must be denied. If there is no triable issue of fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp. v. Superior Court (2003) 114 Cal.App.4th 309, 320.)

“On a summary judgment motion, the court must therefore consider what inferences favoring the opposing party a factfinder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.  Only when the inferences are indisputable may the court decide the issues as a matter of law. If the evidence is in conflict, the factual issues must be resolved by trial.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [cleaned up].)  Further, “the trial court may not weigh the evidence in the manner of a factfinder to determine whose version is more likely true.  Nor may the trial court grant summary judgment based on the court's evaluation of credibility.” (Id. at p. 840 [cleaned up]; see also Weiss v. People ex rel. Department of Transportation (2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or summary adjudication may not weigh the evidence but must instead view it in the light most favorable to the opposing party and draw all reasonable inferences in favor of that party”].)           

EVIDENTIARY OBJECTIONS

The Court declines to rule on Plaintiff’s evidentiary objections on the basis that they have no effect on the ruling herein.

The Court overrules Defendants’ objections to Exhibit 2 attached as Exhibit C to the EIO. To the extent Defendants purport to present objections in their response to Plaintiff’s separate statement, the Court declines to rule on them as they are not properly presented.

DISCUSSION

Negligence and Premises Liability

The elements of a cause of action for negligence are: (1) a duty on the part of defendant toward plaintiff; (2) defendant’s breach of that duty; and (3) harm to the plaintiff caused by that breach. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1142.) The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (McIntyre v. The Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.)

Therefore, to prevail on a claim for premises liability, Plaintiff must prove: (1) defendant owned or controlled the subject property; (2) defendant was negligent in the use or maintenance of the property; (3) plaintiff was harmed; and (4) defendant’s negligence was a substantial factor in causing plaintiff’s harm. (See Rowland v. Christian (1968) 69 Cal.2d 108.) Liability in a premises liability action is based not on responsibility for the conduct of others, but on the failure of the landowner or occupier to act reasonably under the circumstances when he or she has reason to anticipate the probability of injury and has an opportunity to prevent the injury or warn of the peril. (Cody F. v. Falleti (2001) 92 Cal.App.4th 1232, 1242.)

A.    Duty

“The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm.” (Brooks v. Eugene Burger Management Corp.¿(1989) 215 Cal.App.3d 1611, 1619; see Civil Code § 1714.) Because a property owner is not the insurer of the safety of its guests, the owner’s actual or constructive knowledge of the dangerous condition is key to establishing liability. (Hall v. Aurora Loan Servs., LLC (2013) 215 Cal.App.4th 1134, 1139-1140; Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206 [“to impose liability for injuries suffered by an invitee due to a defective condition of the premises, the owner or occupier 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, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises”] [cleaned up].)

To determine the existence and scope of duty, courts consider the foreseeability of harm to the plaintiff, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and the extent of the burden to the defendant of imposing a duty to exercise care with resulting liability for breach.  (Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

“[I]n analyzing duty, the court's task “is not to decide whether a particular plaintiff's injury was reasonably foreseeable in light of a particular defendant's conduct, but rather to evaluate more generally whether the category of negligent conduct at issue is sufficiently likely to result in the kind of harm experienced that liability may appropriately be imposed on the negligent party.” [Citation.] Viewed in this light, the question of foreseeability in a “duty” context is a limited one for the court, and readily contrasted with the fact-specific foreseeability questions bearing on negligence (breach of duty) and proximate causation posed to the jury or trier of fact. [Citation.]”  (Laabs v. Southern California Edison Co. (2009) 175 Cal.App.4th 1260, 1273 [cleaned up].)

Here, Defendants first appear to argue that they breached no duty to Plaintiff because the harm was unforeseeable, the proximity between Defendants’ conduct and Plaintiff’s injuries were attenuated, they lacked moral blame, and imposing a duty would be burdensome.[2] (Motion, 9-11.) Defendants cite no facts when discussing this section in their motion. Moreover, Defendants’ argument assumes the lack of sufficient evidence of a dangerous condition.

 As discussed below, there is sufficient evidence that a liquid substance on the floor caused Plaintiff to fall, and that no inspection may have occurred for 1.5 hours, creating a triable issue of fact regarding constructive notice.  

B.     Evidence of Dangerous Condition

Defendants argue Plaintiff cannot provide evidence describing the dangerous condition.

“A plaintiff alleging injuries based on a dangerous condition must prove the defendant either: (1) created the dangerous condition, or (2) knew or should have known of the dangerous condition.  (See Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1036; see also Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206.) “If a dangerous condition exists, the property owner is “under a duty to exercise ordinary care either to make the condition reasonably safe for [visitors’] use or to give a warning adequate to enable them to avoid the harm.”  (Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 446.)  The existence and scope of a property owner’s duty are legal questions for the court.  (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 36.)   

Here, the following is undisputed. As Plaintiff was on the subject premises and approaching the mall directory, she slipped on a liquid with both feet. (UMF 4.) Plaintiff did not see anything on the floor as she was walking up to the kiosk. (UMF 5.) After Plaintiff slipped, she sat for a moment and then walked to her left to sit on a bench. (UMF 6.) Plaintiff did not know how long the substance was on the floor. (UMF 8.) Plaintiff also does not know how the substance got onto the floor. (UMF 9.) Plaintiff was never able to determine what exactly was on the floor. (UMF 10.)

Defendants set forth the following additional facts:

-          Prior to her slip and fall, Plaintiff did not know the size of the liquid but believes it was a “pinkish white” substance. (UMF 7.)

However, Plaintiff also testified that the substance got on her pants and hands. (Pl. Depo. 53:4-8.) She speculated it was a milk shake or ice cream and that her hands were sticky afterward. (Id., 53:9-17.)

Additionally, Plaintiff sets forth evidence regarding a wet spill that housekeeping was cleaning following Plaintiff’s fall. (PAMF 28; Garzaryan Decl., Exh. C, Jovel Depo. 73:4-21.) The spill was also approximately two feet by two feet. (PAMF 31.) This was confirmed by Township Retail’s Housekeeping Site Manager, Nelson Jovel, during his deposition. Defendants also provided the declaration of Damien Osip, who declares that “[a]t approximately 2:35 pm, Township responded to the location of the slip and fall and proceeded to clean up the identified liquid.” (Osip Decl. ¶ 10.)

Therefore, these facts provide sufficient evidence to create a triable issue of fact that a dangerous condition existed—namely a liquid substance on the floor that caused Plaintiff to fall. Even though Plaintiff could not conclusively state what the substance was during deposition, there is evidence that it was on the floor, it was pink/white, and sticky. Defendants cite Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994 in reply. (See Reply, 3.) However, that case is inapplicable here because in Castellon, the plaintiff alleged the dangerous condition was inadequate lighting, yet it was undisputed that there was a functioning light at the location where the plaintiff fell. (Id. at 999.) Here, as stated above, there are specific facts that could lead a factfinder to conclude that there was a liquid substance on the floor.

C.     Actual or Constructive Notice

            A property owner is not the insurer of the safety of its guests.¿(Ortega, supra, 26 Cal.4th at p 1205.)  The owner’s actual or constructive knowledge of the dangerous condition is key to establishing liability.¿ (Hall v. Rockcliff Realtors (2013) 215 Cal.App.4th 1134, 1139-40.)  Whether a defendant had constructive notice of the condition that created the risk of harm depends on whether, under all the circumstances, the condition was of such a nature and existed long enough that defendant had sufficient time to discover it and, using reasonable care: (1) repair the condition; or (2) protect against harm from the condition; or adequately warn of the condition.  A defendant must make reasonable inspections of the property to discover unsafe conditions.  If an inspection was not made within a reasonable time before the accident, this may show that the condition existed long enough so that the owner using reasonable care would have discovered it.  (CACI No. 1011.)  It is generally a question of fact for the jury as to whether, under all the circumstances, a defective condition existed long enough such that a reasonable person, exercising reasonable care, would have discovered it.  (Hale v. Safeway Stores, Inc. (1954) 129 Cal.App.2d 124, 128-129 (Hale).)  

In Girvetz v. Boys’ Market (1949) 91 Cal.App.2d 827, 829 (Girvetz), the Court of Appeal stated:  

The defendant market owner was not an insurer of the safety of his patrons, but owed them the duty to exercise reasonable care in keeping the premises safe for his invitees. To impose liability for injuries suffered by an invitee due to the defective condition of the premises, the owner or occupier 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, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises. His negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it.  Whether, under all the circumstances, the defective condition had existed long enough so that a reasonable man exercising reasonable care would have discovered it, is ordinarily a question of fact to be decided by the jury. The fact alone that a dangerous condition existed at the time the accident occurred will not warrant an inference that the defendant was negligent. There must be some evidence, direct or circumstantial, to support the conclusion that the condition had existed long enough for the proprietor, in the exercise of reasonable care, to have discovered and remedied it.   

And “[w]here the only evidence is that the foreign object has been on the floor of the market for a minute and a half, it must be held that it is insufficient to support an inference that the defendant proprietor failed to exercise the care required of him.”  (Id. at p. 831.)  On the other hand, where the evidence fails to show how long the dangerous condition existed prior to the injury, “evidence of the owner’s failure to inspect the premises within a reasonable period of time is sufficient to allow an inference that the condition was on the floor long enough to give the owner the opportunity to discover and remedy it. [Citation.]” (Ortega, supra, 26 Cal.4th at p. 1203; Sapp v. W.T. Grant Co. (1959) 172 Cal.App.2d 89, 91-92 (Sapp) [whether 15 to 25 minute interval between inspections was commensurate with the exercise of reasonable care was a question properly left to the trier of fact].) 

            A review of relevant California case law provides a helpful spectrum to determine whether there was sufficient time for a defendant to conduct a reasonable inspection of the area.  On one end of the spectrum is Girvetz, supra, where the Court of Appeal found one and one-half minutes is, as a matter of law, too short a period of time to establish constructive notice. (Girvetz, 91 Cal.App.2d at p. 832.)  Towards the other end of the spectrum are cases holding that ten to twenty minutes between the inspection and the fall requires a jury’s determination of the reasonableness of the inspection. For example, in Louie v. Hagstrom’s Food Stores, Inc., 81 Cal.App.2d 601, 607 (Louie), the plaintiff slipped in a pool of syrup spilled on the floor of defendant’s grocery store. No employee examined the relevant area for fifteen to twenty-five minutes before the accident.  The court held that whether the dangerous condition existed long enough so that a person exercising ordinary care would have discovered it was a question for the jury.  Similarly, in Hale, supra, plaintiff while shopping in defendant’s store slipped on a banana.  The banana may have been on the floor for 30 to 45 minutes.  Again it was held that whether defendant should have discovered and removed the banana within this time was a jury question.  In Sapp, supra, 172 Cal.App.2d at p. 94, the court asked: “Was a twenty minute interval between inspections of the aisles commensurate with the exercise of ordinary care by defendant?”  The court answered: “This is a question that was properly left with the jury to decide.”   

            Here, Defendants offer the following relevant facts:

-          It is the custom and practice of Township’ employees to patrol the areas of the mall to which they are assigned in such a way so as to make a circuit of their area approximately every twenty-five (25) to thirty (30) minutes. (UMF 16.)

-          In addition to their regular duties, Township employees are trained to inspect and police the interior common areas and be on the lookout for any spills, wet areas, or foreign substances on the floors. (UMF 17.)

-          On the date of the incident, two employees of Township were assigned to the area of the mall where the subject incident occurred, Township Assistant On-Site Manager Jose Mendez was on duty from 12:30 p.m. to 9:00 p.m., and Township employee, janitor Rosa Hernandez, came on duty at 2:00 p.m. (UMF 18.)

-          The Township employees on duty at the time of the incident on October 21, 2019, did not deviate, change, and/or alter from their normal policing and patrolling of the interior common areas and being on the lookout for any spills, wet areas, or foreign substances on the floors. (UMF 20.)

-          Employees, Jose Mendez and Rosa Hernandez patrolled, policed, and inspected the interior common area where the subject incident occurred every twenty-five (25) to thirty (30) minutes. (UMF 21.)

-          Prior to the October 21, 2019, incident involving Plaintiff, Township never received any actual notice of the presence of any spills, wet areas, or foreign substances in the interior common area of the Del Amo Fashion Center. (UMF 22.)

Plaintiff sets forth the following facts:

-          Neither Mr. Jovel nor the employees he supervises maintain any type of log to track when employees are conducting inspections. (PAMF 12.)

-          The employees Mr. Jovel supervises are located in 7 different zones of the Subject Premises due to its size. (PAMF 14.)

-          There are approximately seven (7) to eight (8) employees actively patrolling the Subject Premises throughout the day.  (PAMF 15.)

-          There is only one employee assigned at each zone during the entire day. (PAMF 16.)

-          It takes a Township Retail employee approximately 25 to 30 minutes to complete a patrol of their area of the Subject Premises. (PAMF 17.)

-          The Incident Report provides that the Subject Incident occurred at approximately 2:10 p.m. near Daniel’s Jewelers on the south side of the Subject Premises in Zone 6. (PAMF 24.)

-          Township Retail employee Rosa Hernandez was responsible for Zone 6 of the Subject Premises on the day of the Subject Incident. (PAMF 25.)

-          Between 12:30 and 2:00, Jose had multiple responsibilities including taking care of both his Zone and Zone 6, but when asked if Jose might not have inspected Zone 6 due to his many duties, Mr. Jovel responded “I don't know.” (PAMF 26.)

-          Nobody was assigned to Zone 6 between 12:30 p.m. and 2:00 pm., 1 and ½ hours on the day of the Subject Incident. (PAMF 27.)

Jose Mendez testified that he was assigned to Zone 4 on the day of the incident and was not assigned to the zone where the incident took place, although he did go through Zone 6. (Gazaryan Decl., Exh. D, Mendez Depo. 25:9-14, 34:6-8.)[3] This conflicts with Defendants’ UMF 18 and testimony by Jovel, which indicates that Mendez was on duty in that area. Since Mr. Mendez also testified that Rosa Hernandez started work at 2:00 p.m., and the incident occurred around 2:10 p.m. a reasonable fact finder could conclude there was no inspection between 12:30 p.m. and when the incident occurred; this creates a window of about 1.5 hours.  Therefore, viewing the evidence in the light favorable to Plaintiff, there is a triable issue of fact regarding constructive notice. The potential time frame between an inspection is beyond the limits for deciding this issue as a matter of law.

CONCLUSION AND ORDER

Based on the foregoing, Defendants Township Retail Services, Incorporated and Del Amo Fashion Center Operating Company, LLC’s Motion for Summary Judgment is DENIED.

            Defendants shall give notice of this ruling and file a proof of service of such.