Judge: Anne Hwang, Case: 22STCV01658, Date: 2024-07-30 Tentative Ruling

Case Number: 22STCV01658    Hearing Date: July 30, 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.      Amended Notice of Motion and Motion for Summary Judgment; Memorandum of Points and Authorities[1]

2.      Amended Separate Statement of Undisputed Material Facts

3.      Evidence in Support

OPPOSITION PAPERS

1.      Plaintiff’s Memorandum of Points and Authorities in Opposition

2.      Plaintiff’s Separate Statement of Material Facts and Additional Material Facts

3.      Declaration of Raymond Ghermezian in Support

4.      Declaration of Eris J. Barillas in Support

REPLY PAPERS

1.      Defendant’s Reply to Plaintiff’s Opposition

2.      Defendant’s Evidentiary Objections

BACKGROUND

On January 14, 2022, Plaintiff Maria Victoria Vilchis-Hernandez (“Plaintiff”) filed a complaint against Defendant Rosemead Car Wash, Inc. dba P & J Self Service Car Wash (“Defendant”) for negligence and premises liability. Plaintiff alleges that on December 14, 2020, she was on Defendant’s premises when she slipped due to a dangerous condition.

Defendant now moves for summary judgment, or in the alternative, summary adjudication arguing: (1) there is no evidence that it breached a duty of care, (2) no evidence it had actual or constructive notice of a dangerous condition, (3) no evidence of causation, and (4) no evidence there was anything on the floor which caused Plaintiff to fall. Plaintiff opposes 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 Defendant’s evidentiary objections to the Declaration of Eris J. Barillas, and objections to evidence Nos. 24-26, because the Court does not consider the evidence in reaching the ruling herein.

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.)

“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.)¿ 

“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.)

A.    Evidence of Breach/Evidence of Plastic Bag

Defendant contends Plaintiff cannot produce evidence of a breach, or that there was anything on the floor. “ ‘Breach of duty is usually a fact issue for the jury; if the circumstances permit a reasonable doubt whether the defendant's conduct violates the standard of due care, the doubt must be resolved by the jury as an issue of fact rather than of law by the court. [Citation.]’ [Citation.]” (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207.)

Here, it is undisputed that the incident took place on December 14, 2020 at P & J Self Service Car Wash, at 3013 Earle Ave. Rosemead. (UMF 1-3.) Plaintiff pulled into the car wash bay at approximately 3:05 p.m. and was in the bay for almost 8 minutes washing her car. (UMF 14.) Plaintiff sprayed her car with water and used the soap brush. (UMF 15.)

Plaintiff’s husband was not present when the incident occurred but arrived and took several photos of the scene afterward. (UMF 7, 9.) A production photograph, presumably taken by Plaintiff's husband, depicts soap and what appears to be a clear plastic bag on the ground in the approximate area of the incident. (UMF 10.)

Here, there is a triable issue of fact regarding whether the surveillance video footage depicts the ground where the plastic bag was purportedly located. Based on the footage, it appears Plaintiff fell near the left rear side of her vehicle. Defendant has produced Plaintiff’s response to its Request for Production, Set One. (Volk Decl, Exh. H.) The response includes a photograph taken by Plaintiff’s husband after arriving at the scene, showing what appears to be a plastic bag in soapy water behind Plaintiff’s vehicle. (Exh. H, Exh. 2.) Accordingly, there is a triable issue of fact regarding the presence of the bag in soapy water.

Though Defendant argues that its expert, Mark Blanchette, opined that the concrete floor in the bay was slip resistant when wet and soapy, his inspection did not consider the effect of the plastic bag.[2]

B.     Causation

“ ‘[T]he decision whether that breach caused the damage (that is, causation in fact) is again within the jury’s domain; but where reasonable men will not dispute the absence of causality, the court may take the decision from the jury and treat the question as one of law. [Citations.]’ [Citations.]” (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207 (“Constance”) [italics in original].)¿Causation is established by showing that a defendant’s breach of duty was a substantial factor in bringing about plaintiff’s injury, and there is no legal rule relieving defendant from liability. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) Defendant’s negligence is the actual cause, or cause in fact, of plaintiff’s injury if it is a substantial factor in bringing about the harm. (Mitchell v. Gonzales (1991) 54 Cal.3d 1041, 1052.) “In other words, [the] plaintiff must show some substantial link or nexus between omission and injury.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 778.)¿¿ 

As discussed above, because there is a triable issue of fact regarding the presence of the plastic bag in the soapy water, the Court cannot conclude as a matter of law that the bag, combined with the soap and water, did not cause Plaintiff to fall.

C. Actual and Constructive Notice

“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.) However, in Girvetz, the court held that evidence that a banana (which caused a fall) was on the floor of a market for “a minute and a half” was insufficient to support an inference that the store owner failed to exercise care. (Girvetz, supra, 91 Cal.App.2d at 831.)

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.)

Defendant sets forth the following facts:

-          RCW hired a day porter, Mr. Chen, with the responsibility of performing inspections of the subject facility, including car wash bays, on the date of the incident. (UMF 18.)

-          Every day, including holidays, Mr. Chen was on the property to clean the trash and check all nozzles for the high-pressure wands/hoses. (UMF 19.)

-          While Mr. Chen was on site at the car wash, he performed visual inspections of the premises to identify conditions (debris, trash, walking hazards) requiring inspection, cleaning, and maintenance. (UMF 20.)

-          If there were any concerns regarding the condition of the premises, including car wash pays and equipment, Mr. Chen would have notified RCW. (UMF 21.)

-          On the 1st and 15th of every month, and whenever it was full, Mr. Chen would clean the grates. (UMF 22.)

-          Defendant Rosemead Car Wash has never received any information of any complaints by customers of slip and falls after soaping their vehicles with the foam brush. (UMF 30)

Plaintiff sets forth the following facts:

-          Mr. Ho would have inspected the bays once between 9 and 11 a.m. (PAMF 7.)

-          Based on custom and practice, Mr. Chen would have inspected the bays once each day between 7 and 9 a.m. (PAMF 9.)

-          Neither Mr. Chen nor Mr. Ho inspected the bays after each car left. (PAMF 10.)

-          The Car Wash maintains no records as to when Mr. Chen cleaned and/or inspected the bays. (PAMF 11.)

Plaintiff produces deposition testimony by Robert Ho, Defendant’s manager, co-owner, and person most knowledgeable. Mr. Ho testified that he most likely worked at the car wash on the date of the incident, between 9 a.m. and 11 a.m. (Ghermezian Decl., Exh. 4, Ho Depo. 8:19-22.) He also testified that his assistant Mr. Chen, likely worked that day as well. (Ho Depo. 10:9-21.) He testified that he would have inspected the bays between 9 a.m. and 11 a.m., and Mr. Chen would have inspected the bays between 7 a.m. and 9 a.m. (Ho Depo. 13:11-21.) Therefore, the evidence suggests that at the latest, the bays were inspected at 11 a.m.—approximately 4 hours before Plaintiff fell. Therefore, in light of the authorities above, a triable of fact remains whether the condition existed for a long enough time that Defendant had constructive notice of the bag in soapy water.

            Based on the following, the motion for summary judgment is denied.

CONCLUSION AND ORDER

            Based on the foregoing, Defendant Rosemead Car Wash, Inc.’s Motion for Summary Judgment or adjudication is DENIED.

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