Judge Anne Hwang, Case Number: 22STCV03070, Date: 2024-01-08 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 Carly English

2. Plaintiffs’ Opposition to Defendant’s Separate Statement and Plaintiff’s Statement of Additional Material Facts

On January 20, 2023, Plaintiffs Thomas Zeiler and Kim Zeiler (collectively, “Plaintiffs”) filed a complaint against Defendant Costco Wholesale Corporation, U-Haul Co. of California, and Does 1-50 for negligence, premises liability, and loss of consortium. Plaintiff Thomas Zeiler (Thomas) alleges that on December 14, 2021, he slipped and fell on gasoline at a Costco gas station that was leaking from a U-Haul vehicle. (FAC ¶ 20.) Plaintiffs allege that Moving Defendant Costco Wholesale Corporation (Costco) negligently maintained, managed, and controlled the subject gas station, allowing the gasoline to accumulate on the ground. (FAC ¶ 37–39.)

Costco now moves for summary judgment, arguing there is no evidence that Costco had actual or constructive notice of the alleged dangerous condition. Accordingly, Costco also argues that Plaintiff Kim Zeiler’s cause of action for loss of consortium has no merit since it is dependent on the negligence and premises liability causes of action. Plaintiffs oppose.

Defendant objects to various portions of the Declaration of Brad Avrit. The Court considers the evidence as discussed below.

The Court declines to rule on the remaining objections because consideration of the evidence does not impact 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.)

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].)

As an initial matter, the complaint appears to allege that Plaintiff slipped on spilled gasoline, which constitutes the alleged dangerous condition. (Complaint ¶ 21.) This is the condition Costco addresses in its initial moving papers. Costco argues that there is no evidence that it had actual or constructive notice of the spilled gasoline. Here, the parties agree that the spilled gasoline in question flowed from the U-Haul. (UMF 10.) The following facts are also undisputed:

- Surveillance footage of the gas station from the date of the incident confirms that the U-Haul pulled up to gas pump number 22 at 11:51 a.m. (UMF 21.)

- The driver of the U-Haul did not put the gas pump into the U-Haul and begin pumping gas until approximately 11:57:00 a.m. (UMF 22.)

- Plaintiffs’ vehicle pulled up to gas pump number 19 at 11:58:05 a.m. (UMF 23.)

- Plaintiff THOMAS ZEILER then exited his vehicle shortly thereafter and walked towards the U-Haul. (UMF 24.)

- Plaintiff THOMAS ZEILER is ultimately seen falling to the ground at 11:58:30, approximately one and a half minutes after the U-Haul first began pumping gas. (UMF 25.)

- Mr. Osterberg was unaware that there was any spill on the ground prior to incident occurring. (UMF 13.)

Here, Costco has met its burden in establishing that it had no actual or constructive notice of the gasoline spill. The approximately 1.5 minutes that the gasoline was accumulating on the ground is similar to the timeframe in Girvetz. Therefore, the burden shifts to Plaintiffs to demonstrate a triable issue of fact.

Rather than presenting evidence or argument regarding the amount of time the gasoline was on the floor, Plaintiffs appear to make three separate arguments, all of which rely primarily on the opinions of retained expert Brad Avrit: (1) the dangerous condition was the white painted strip, which is slippery when oil mixes with rainwater (Opposition at p. 6), (2) the dangerous condition was the drain, (Opposition at pp. 6-7) and (3) Costco’s staffing and inspection procedures were inadequate and Costco had knowledge of prior slip and falls within the last five years. (Opposition at pp. 8-9.) Plaintiffs offer the following facts:

- Costco is aware that the ground at the subject gasoline station gets slippery when there is rain. (PAMF 10.)

- Defendant COSTCO is aware that gasoline can cause the ground to become slippery. (PAMF 11.)

- Defendant COSTCO is aware that many cars come into the station that are leaking oil and other substances and mixes with rain. (PAMF 12.)

- Defendant COSTCO is aware of prior slip and falls involving slipping on spilled gasoline at the subject gasoline station within the last five years. (PAMF 13.)

- Costco contracts with a third party to paint the white strips on the floor of the subject gasoline station. (PAMF 17.)

- The white painted lines in the subject gasoline station were last painted prior to the subject incident between August 30 and August 31, 2021. (PAMF 18.)

- Costco is not aware if any sand or abrasive material were used in the paint for the white strips. (PAMF 19.)

- Defendant Costco claims in discovery responses that it did not have any documentation identifying the type of paint for the white painted strips. (PAMF 20.)

- Costco employees knew that the white painted strips were more slippery than the concrete when wet. (PAMF 21.)

- The Costco gas station is equipped with a long drain that goes behind every dispenser and is within feet of the area where the subject incident occurred. (PAMF 23.)

- Surveillance footage shows as Mr. Zeiler walked behind the subject U-Haul, ripples of liquid can be seen extending from the back of the subject U-Haul to the long drain that extends across the banks of gasoline pumps. (PAMF 24.)

- Costco does not service the drain and uses a third party, KVAC to maintain the drain, including making sure the drain is not clogged. (PAMF 26.)

- The time the drainage system was last cleaned nearly 10 months prior to the subject incident on February 22, 2021. (PAMF 28.)

- American Society for Testing and Materials F1637-19 in Section 5.1.3 states that “Walkway surfaces shall be slip resistant under expected environmental conditions and use. Painted walkways shall contain an abrasive additive, crosscut grooving, texturing or other appropriate means to render the surface slip resistant where wet conditions may be reasonably foreseeable.” (PAMF 30.)

- Paint can fill textured pockets of asphalt and smooth over surfaces, reducing slip-resistance. (PAMF 31.)

- Rainwater collects on top of paint and can cause a hydroplane condition. (PAMF 32.)

- The addition of a slippery substance such as gasoline with rainwater is likely to further exacerbate hazardous conditions. (PAMF 33.)

“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].)

Mr. Avrit concludes that “the subject area and floor surface constituted a hazardous condition at the time of the subject incident.” (Avrit Dec. ¶ 10.) Although he explains certain factors that generally can make the ground slippery, including paint and rainwater, the only fact that is presented (as opposed to speculation or a conclusion) regarding the particular painted area at issue here supports an opposite conclusion. Specifically, Avrit declares that “Mr. Gorb performed slip tests on the concrete and painted surfaces with both gasoline and water using the English XL Variable Incident Tribometer. Industry standards indicate that a walking surface tested with the English XL VIT with a result of 0.50 or above is reasonable [sic] safe under the foreseeable conditions. Both the concrete and painted surfaces of the subject incident area tested and met the minimum standard.” (Avrit Dec. ¶ 12.)

Regarding the drain, Mr. Avrit states that a “drain was located immediately next to the subject incident area, and it appeared that rainwater was pooling in the area and near the drain. It is possible the drain was not functioning properly at the time of the incident and caused the pooling rainwater to accumulate.” (Avrit Dec. ¶ 10.) Here, Mr. Avrit does not even state an opinion, but merely speculates a possibility based on insufficient facts. Mr. Avrit does not explain that an inspection or analysis of the subject drain was conducted.

Finally, as to Plaintiffs’ argument regarding the inadequacy of Costco’s staffing and inspection protocols, a reasonable inspection must be made within a reasonable time before the accident. Here, it is undisputed that the gasoline condition (even if mixed with rainwater) existed for about 1.5 minutes. If the evidence had not shown how long the gasoline was on the ground, then the question of the inspection policy may create a triable issue. However, under the reasoning of Girvetz, “where the only evidence is that the foreign object has been on the floor […] 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.” (Girvetz, supra, 91 Cal.App.2d at 831.)

Based on the foregoing, Defendant Costco Wholesale Corporation’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 disputes what Mr. Osterberg knew, Plaintiff does not present evidence to create a triable issue of fact that Costco had actual knowledge of the gasoline spill prior to the incident.

DEPT:	32
HEARING DATE:	January 8, 2024
CASE NUMBER:	22STCV03070
MOTIONS:	Motion for Summary Judgment
MOVING PARTY:	Defendant Costco Wholesale Corporation
OPPOSING PARTY:	Plaintiffs Thomas Zeiler and Kim Zeiler