Judge: Anne Hwang, Case: 21STCV45695, Date: 2023-09-20 Tentative Ruling

Case Number: 21STCV45695    Hearing Date: September 20, 2023    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 or in the Alternative, Summary Adjudication; Memorandum of Points and Authorities; Declaration of Eugene J. Egan and Attached Exhibits

2.      Declaration of Alex Martinez Jr in Support

3.      Separate Statement of Undisputed and Material Facts

4.      Target Corporation’s Index of Exhibits

OPPOSITION PAPERS

1.      None filed.

REPLY PAPERS

1.      None filed.

BACKGROUND

On December 14, 2021, Plaintiff Gladys Sepedjian filed a complaint against Defendant Target Corporation, Mario Rodriguez, and Does 1-100 for injuries allegedly caused by a ball that was in the aisle of Defendants’ premises.

Defendant Target Corporation (Target) now moves for summary judgment, or in the alternative, summary adjudication arguing that no triable issue of material fact exists and that there is no evidence that Target has actual or constructive notice of the alleged dangerous condition. No opposition has been filed.

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”].)           

DISCUSSION

Negligence­–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.)

“A store owner is not the insurer of its patrons' personal safety, but does have a duty to exercise reasonable care to keep the premises reasonably safe for patrons. [Citation.] This includes a duty to keep the floors safe for patrons' use. [Citation.] To establish an owner's liability for negligence, the plaintiff must prove duty, breach, causation, and damages. [Citation.]” (Peralta v. Vons Companies, Inc. (2018) 24 Cal.App.5th 1030, 1035.)

 “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.” (Girvetz v. Boys’ Market, Inc. (1949) 91 Cal.App.2d 827, 829.)

“A store owner exercises ordinary care by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)

If the owner operates a self-service grocery store, where customers are invited to inspect, remove, and replace goods on shelves, “the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed to safeguard against the possibility that such a customer may create a dangerous condition by disarranging the merchandise” and creating potentially hazardous conditions. (Ibid.) “However, the basic principle to be followed in all these situations is that the owner must use the care required of a reasonably prudent [person] acting under the same circumstances.” 

(Id.) 

Neither actual knowledge of the defect nor direct evidence of the length of time a dangerous condition existed is necessary; rather, the defendant’s constructive knowledge of the defect may be shown by circumstantial evidence. (Id. at 1206-1207.) 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.]” (Id., at 1203; Sapp v. W.T. Grant Co. (1959) 172 Cal.App.2d 89, 91-92 [whether 20 minute interval between inspections was commensurate with the exercise of reasonable care was a question properly left to the trier of fact]; Shaw v. Colonial Room (1959) 175 Cal.App.2d 845, 848–49 [failure to inspect tavern two and one-half hours prior to slip and fall deemed sufficient evidence to establish negligence].) While failure to inspect is not sufficient, alone, to satisfy the plaintiff’s burden, the owner’s inspection practice is one of several factors that may be used to determine the length of time a condition existed. (Ortega, 26 Cal.4th at 1208.) Although constructive knowledge may be inferred from a failure to inspect the premises within a reasonable time before the injury, speculation and conjecture are not sufficient to carry the plaintiff’s burden. (Id. at 1205-1206.)

Typically, the question of whether a condition existed so long as to be discoverable within a reasonable time is a question of fact to be decided by the jury. (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 807; Tuttle v. Crawford (1936) 8 Cal.2d 126, 130; Rothschild v. Fourth & Market St. Realty Co. (1934) 139 Cal.App. 625, 627.) If there is no substantial evidence from which it can be reasonably inferred that the condition existed for a sufficient period of time to charge the defendant with constructive notice of its presence and to remedy the condition, a defendant may be entitled to judgment as a matter of law. (Perez v. Ow (1962) 200 Cal.App.2d 559, 562.)

            Target argues no employee had actual or constructive notice of the ball that Plaintiff tripped on. Here, Target sets forth the following facts:

-          Plaintiff slipped on a ball and fell around 6:45 pm in the R17 area of the Subject Store. (UMF 2.)

-          A Target employee, Alex Martinez conducted an inspection of the area fifteen (15) minutes before the fall and did not see any balls or hazards of any sort. Mr. Martinez was trained to carefully observe if there are any hazards or spills whenever he was inspecting or walking around the store. If there are hazards, he immediately addresses them. (UMF 3.)

-          As observed by Mr. Martinez, the R17 area was completely free of any objects on the floor fifteen minutes before Plaintiff’s fall. (UMF 4.)

-          Plaintiff has no evidence to support her allegations that Defendant had constructive notice or actual notice, no evidence to show how long the ball was on the floor, who put the ball on the floor, or any evidence if anyone had told any Target employee about the ball before she fell. (UMF 5.) 

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.^[4]  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 fifteen to twenty minutes between the inspection and the fall requires a jury’s determination of the reasonableness of the inspection.^[5]  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.” 

However, in Louie, which considered a time period of fifteen to twenty-five minutes, the court considered the time period along with other factors including that the glass jar which created the condition would have made an appreciable noise when it fell and broke, a cashier was close enough to have heard it, and that the puddle of syrup was big enough to support an inference that it was actually on the floor for a substantial period of time. (Louie, supra, 81 Cal.App.2d at 608-09.) The Court considers “[w]hether, 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.” (Girvetz, supra, 91 Cal.App.2d at 829 (emphasis added).)

Here, Target has set forth facts that show the ball was on the floor for no more than fifteen minutes. Target produced evidence that the employee responsible for the area where the incident took place has been trained to always look for potential safety hazards. (Martinez Decl. ¶ 4.) He further declared that all Target employees are trained to immediately address hazards when they see them. While this case falls toward the end of the spectrum where the time period creates a question of fact, in considering the time period along with all other circumstances, the Court finds that Target has met its burden to show there are no triable issues of fact. The burden now shifts to Plaintiff.

Plaintiff has not produced any evidence to establish a triable issue of material fact. Accordingly, the Court grants summary judgment in favor of Target.

CONCLUSION AND ORDER

            Based on the foregoing, Defendant Target Corporation’s Motion for Summary Judgment is GRANTED.

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