Judge Anne Hwang, Case Number: 21STCV42856, Date: 2024-01-10 Tentative Ruling

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.

1. Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities; Declaration of Kimberly A. Byrge and Exhibits

On November 19, 2021, Plaintiff Shireen Ayoub (Plaintiff) filed a complaint against Moving Defendant Forest Lawn Memorial-Park Association (Defendant) for negligence and premises liability after allegedly slipping and falling in Defendant’s restroom. Plaintiff alleges that Defendant breached its duty by “allowing water accumulation and a slippery condition.” (Complaint ¶ 18.)

Defendant now moves for summary judgment, or in the alternative, summary adjudication, arguing (1) there is no evidence a dangerous condition existed at the time of the incident; (2) Defendant lacked any notice of the alleged condition; (3) Defendant provided an adequate warning; and (4) there are no triable issues regarding causation. Plaintiff opposes.

Plaintiff objects to the Declaration of Ronald Kvitne. The Court declines to rule on the objections because the Court does not rely on the evidence to reach the ruling herein.

The Court declines to rule on Defendant’s evidentiary objections, except as discussed below, because consideration of the evidence does not change the ruling herein.

“[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”].)

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; Civ. Code, § 1714, subd. (a).) Therefore, to prevail on a claim for premises liability, the 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 CACI No. 1000; Rowland v. Christian (1968) 69 Cal.2d 108.)

A defendant may be negligent in the use or maintenance of the property if (1) a condition on the property created an unreasonable risk of harm; (2) the defendant knew or, through the exercise of reasonable care, should have known about it; and (3) the defendant failed to repair the condition, protect against harm from the condition, or give adequate warning of the condition. (CACI No. 1003.)

“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.)

Defendant argues there is no evidence a dangerous condition existed at the time of the incident, and even if it did, Defendant did not have actual or constructive notice of it. Defendant offers the following facts:

- After visiting a gravesite with her husband, Plaintiff went to the subject restroom. As she went into the subject restroom, someone came out. (UMF 4.)

- When she entered the subject restroom and walked to the toilet from the door, she did not slip and fall. She used the toilet, then stood up, put her clothing back on, then as she took one step with her right foot, she slipped and fell. (UMF 5.)

- Plaintiff has confirmed at the time of the incident 1) she did not see anything on the floor, 2) she did not see any water on the ground, and 3) even if there was anything on the floor she did not see it. (UMF 6.)

- The photographs and videos taken by Plaintiff’s husband and Forest Lawn immediately after Plaintiff’s alleged incident also confirm there was no water or any other liquid substance on the floor. (UMF 7.)

- Leonel Barrera, the employee of Forest Lawn who exited and passed Plaintiff at the subject restroom confirmed that he did not observe any water, liquid substance or unsafe condition on the floor while he was in the subject restroom. (UMF 8.)

- Forest Lawn employee Maria Rodriguez’s inspection and cleaning of the subject restroom earlier that morning confirmed that neither the sink nor the toilet in the subject restroom were leaking on the day of the incident. (UMF 9.)

- The subject restroom floor had been mopped at approximately 5:30 a.m. earlier that morning and Ms. Rodriguez placed a bright yellow “caution” sign in the subject restroom after the mopping activity, which remained in the subject restroom at the time of the alleged incident to provide warn patrons to exercise caution. (UMF 10.)

- Immediately after Plaintiff’s alleged incident was reported, Forest Lawn examined the floor and did not find any water, liquid or other substance on the floor. (UMF 12.)

Q: Was there any water on the ground or any condition on the ground when you were walking from the door to the toilet?

A: I didn’t see. You know, the floor actually is white-colored. I didn’t see anything.

A: The tiles were very slippery, if you will. So the tiles were, like, so soft and glistening, like a mirror, so to speak, so that it was very slippery.

A: I didn’t see anything on the floor. I slipped. I didn’t see anything on the floor. So even, you know, the color of the floor was white. So even if there was anything on the floor, how would I see it?

- Plaintiff did not lose her balance and then fall. Rather when she was taking a step with her right foot, she slipped and then fell. (PAMF 8.)

- While she was on the floor, she noticed her pant legs were damp. She also remembers noticing that her right hand felt wet. They were not damp or wet before she fell. (PAMF 11.)

- She was on the ground nearly forty-five minutes between the time she fell and the time that paramedics removed her from the ground. No Forest Lawn employee entered the bathroom during those forty- five minutes so they did not immediately inspect the floor. (PAMF 12.)

- No Forest Lawn employee inspected the area under the Plaintiff, the plaintiff’s clothing or the Plaintiff’s shoes for moisture. (PAMF 13.)

- When recently examining the photograph numbered IMG_1710 Plaintiff’s recollection was refreshed and she remembered that as she slipped her left leg went out straight traveling in the direction from nearer to the toilet toward the trash can by the sink. The black mark on the tile floor is from her left shoe. She somehow fell onto her right foot, causing the break. (PAMF 17.)

- Plaintiff did not see the water on the floor so she was unaware of it. Had she been able to see the water, she would have avoided it. The ground was shiny, glistening and white with reflections from the window and ceiling light on it making it impossible to see clear water. (PAMF 18.)

- In the photograph taken immediately after the Plaintiff fell, streaking water marks can be seen traveling down the back wall between the urinal and waste basket, to the floor, roughly intersecting into the black streak caused by Plaintiff’s shoe. The photograph must be zoomed in to see this clearly. (PAMF 19.)

- Plaintiff’s expert Mark Burns inspected the bathroom on March 24, 2021. Under clean and dry conditions, slip resistance was measured to be as high as .71. But when water is present, it was as low as .20. With water present, the slip resistance of .20 corresponds with a greater than 80% chance of a slip event occurring. This is an unreasonable and unacceptable risk as it would create a large probability of a slip and fall occurring. The slip resistance of ice is .17 when wet and .20 when dry. Because slip resistant when dry, a contaminant must have been present for Plaintiff to slip and fall. The shoe skid mark would not have been present without water, and Plaintiff declared her pants were wet, so there was water on the floor which caused her to slip and fall. Water on the floor was a significant slipping hazard at the time of the incident. (PAMF 38.)

Plaintiff argues there is a triable issue of fact that the floor was wet[1] because Plaintiff has provided a declaration that her pants were damp and her hand was wet after the fall. She further argues that the photographs reveal a black mark that shows where she slipped, and which she argues is evidence of water. Lastly, Plaintiff points to photographs of water on a wall next to the sink, which she argues is proof that water was on the floor.[2]

As an initial matter, the Court sustains Defendant’s objections to Plaintiff’s declaration, paragraph 15 (Objection No. 2.). In her deposition, Plaintiff was repeatedly and generally asked about whether there was anything on the floor. The questions were not limited to what Plaintiff saw. She never testified that her pants were damp and her hand wet. “[W]hen discovery has produced an admission or concession on the part of the party opposing summary judgment which demonstrates that there is no factual issue to be tried, certain of those stern requirements applicable in a normal case are relaxed or altered in their operation.” (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.) Representations in a declaration submitted in opposition to a summary judgment that contradict prior deposition testimony “are insufficient to defeat summary judgment and [are] properly stricken.” (Collins v. Hertz. Corp. (2006) 144 Cal.App.4th 64, 79.)

“The requirements for expert testimony are that it relate to a subject sufficiently beyond common experience as to assist the trier of fact and be based on matter that is reasonably relied upon by an expert in forming an opinion on the subject to which his or her testimony relates. Such evidence is admissible even though it encompasses the ultimate issue in the case. Evidence Code section 801, subdivision (b) allows an expert to testify “[b]ased on matter (including his special knowledge, skill, experience, training, and education) perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates, unless an expert is precluded by law from using such matter as a basis for his opinion.” (People v. Polk (2019) 36 Cal.App.5th 340, 353, internal quotations omitted.)

Evidence Code section 720, subdivision (a) provides: “A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates. Against the objection of a party, such special knowledge, skill, experience, training, or education must be shown before the witness may testify as an expert.” An expert’s qualifications must be related to the specific subject of the expert’s testimony; qualifications in a related subject are insufficient. (Lowery v. Kindred Healthcare Operating, Inc. (2020) 49 Cal.App.5th 119, 125.)

“In Sargon Enterprises, Inc. v. University of So. Calif. (2012) 55 Cal.4th 747, the California Supreme Court explained that “under Evidence Code sections 801, subdivision (b), and 802, the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative. But courts must also be cautious in excluding expert testimony. The trial court’s gatekeeping role does not involve choosing between competing expert opinions. The gatekeeper’s focus must be solely on principles and methodology, not on the conclusions that they generate.”” (Lowery, supra, 49 Cal.App.5th at p. 124 [cleaned up].)

Plaintiff presents the Declaration of Mark Burns, her expert who inspected the restroom on March 24, 2021. Mr. Burns stated that “photographs from the date of incident show a skid mark on the floor which would not be present without water on the floor.” (Burns Decl. ¶ 11.) However, he provides no explanation or basis for his speculation.

The case of Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, which involved a slip and fall at a market, is instructive. There, the plaintiff alleged she slipped on “oil or grease.” (Id. 1032.) However, the plaintiff unequivocally stated that she saw nothing on the floor prior to after her fall. Additionally, defendant’s employee inspected the surrounding area after the fall and did not find any substance on the floor. (Id. at 1035.) The court also disregarded testimony from an expert who opined that the manner in which the plaintiff fell was consistent with a slip caused by a foreign substance. The court affirmed summary judgment for the defendant store, finding that the plaintiff could not produce evidence there was a substance on the floor; thus, there was no triable issue of fact regarding constructive notice. (Id. at 1036 [“The mere possibility that there was a slippery substance on the floor does not establish causation.”].)

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.[3] (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.[4] 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.”

Although not a formal inspection of the bathroom floor, Defendant offers evidence that its employee did not observe any water, liquid substance, or unsafe condition on the floor while he was in the restroom, immediately before Plaintiff fell. Plaintiff does not present any contrary evidence creating a triable issue of fact. Rather, Plaintiff argues about a caution sign being present in the bathroom for nine years, including at the time of the fall. (PAMF 23.)[5] This evidence, however, does not establish a triable issue of fact that Defendant had constructive or actual notice of the presence of water causing the subject incident. Accordingly, construing the evidence in the light most favorable to Plaintiff, including all reasonable inferences, the Court finds there are no triable issues of fact that Defendant had actual or constructive notice of a dangerous condition.[6]

Based on the foregoing, Defendant Forest Lawn Memorial-Park Association’s Motion for Summary Judgment is GRANTED. Defendant shall file and serve a proposed judgment within 10 days.

Defendant shall provide notice of this ruling and file a proof of service of such.

[1] Although Plaintiff appears to suggest that the dangerous condition was the floor itself (see Opposition at p. 1), Plaintiff’s own expert does not provide evidence regarding the dangerousness of the floor material. (See Burns Dec. ¶ 9 [“Under clean and dry conditions, the slip resistance was measured to be as high as 0.71.”].) Rather, the evidence presented relates to the presence of water on the floor, causing Plaintiff to slip and fall. (Id. at ¶ 16 [“In conclusion, the subject ceramic tile floor is safe when dry but slippery when wet with water. Water was present at the time of the incident….”].) Plaintiff characterizes the condition as a “dangerously slippery” floor “when invisible water was on it.” (Opposition at p. 1.)

[2] Contrary to Plaintiff’s assertion, the photographs do not appear to show there was water on the floor. Though Plaintiff argues the photos reveal some water dripping down the wall below the paper towel holder, she does not explain how that translates to water in the area where she allegedly fell. “Facts are the lifeblood of summary judgment proceedings because absent a factual dispute, trial is unnecessary. …A party cannot avoid summary judgment by asserting facts based on mere speculation and conjecture, but instead must produce admissible evidence raising a triable issue of fact.” (Christina C. v. County of Orange (2013) 220 Cal.App.4th 1371, 1378 (quotations and citations omitted).) According to the photographs, the area where the black mark exists is not below the paper towel holder. Therefore, Plaintiff offers no reason how water could have collected where the fall occurred.

[3] Various factors may calibrate this timing. For example, heavily trafficked areas where slippery substances may be present will require more frequent inspections and attention from the store owner.

[4] There are other variables to be considered when determining the reasonableness of an inspection. For example, the length of the inspection; how the inspection was performed, the record of the inspection, etc.

[5] Plaintiff’s own undisputed fact provides evidence that the caution sign was kept in the bathroom because it was an exterior bathroom, for caution, to say “be aware.” (PAMF 23.) Contrary to Plaintiff’s argument that the caution sign demonstrates that Defendant “knew the floor was dangerously slippery when invisible water was on it,” Plaintiff presents no such evidence supporting this argument regarding Defendant’s knowledge. (Opposition at p. 1.) In any event, Plaintiff does not present evidence that Defendant knew or should have known about the presence of “invisible water” at the time of the fall.

[6] In light of the Court’s ruling, the Court does not reach Defendant’s other arguments.

DEPT:	32
HEARING DATE:	January 10, 2024
CASE NUMBER:	21STCV42856
MOTIONS:	Motion for Summary Judgment, or in the alternative, Summary Adjudication
MOVING PARTY:	Defendant Forest Lawn Memorial-Park Association
OPPOSING PARTY:	Plaintiff Shireen Ayoub