Judge Anne Hwang, Case Number: 22STCV09659, Date: 2024-03-15 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

2. Plaintiff’s Response to Defendant’s Separate Statement; Plaintiff’s Separate Statement of Undisputed Facts

On March 18, 2022, Plaintiff Maria Barraza (“Plaintiff”) filed a complaint against Defendant The Kroger Co., Food 4 Less of California, Inc., Food 4 Less GM, Inc., and Does 1-50 for negligence and premises liability. Plaintiff alleges that on July 12, 2021, she slipped and fell on a transient substance on defendant’s premises at 1329 N. Lake Avenue, Pasadena, California. (Complaint ¶ 13.) She alleges the substance was hidden and bereft of any warning signs. (Ibid.)

Defendant Alpha Beta Company dba Food 4 Less (“Defendant”) now moves for summary judgment, arguing that no triable issue of material fact exists and that Defendant did not have actual or constructive notice of the dangerous condition. Plaintiff opposes and Defendant replies.

“[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].)

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 fifteen 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.”

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, Defendant argues it had no actual or constructive notice of the dangerous condition, and that Plaintiff lacks evidence of the alleged notice. Defendant offers the following facts:

- Defendant's store policy requires employees to sweep and inspect the entire store at least once every (60) sixty minutes. (UMF 2.)

- Defendant's employees are also trained to clean a spill anytime a customer informs them that an aisle needs care. (UMF 3.)

- No customers or employee informed Defendant that the aisle needed care between the time swept and Plaintiff's fall. (UMF 4.)

- Defendant's employee, Albert Ramirez, conducted inspections and sweeps of the back aisle, near the meat department, from 7:03:06 to 7:03:21 p.m., 7:07:44 to 7:08:22 p.m., and 7:10:34 to 7:10:37 p.m. The employee's sweep was twenty-eight minutes prior to Plaintiff's fall at 7:38:51 p.m., and twenty-six minutes before the spill which occurred at 7:36:09 p.m. (UMF 5.)

- Creation of the spill is seen at 7:36:09 p.m. A customer picks out a canned drink from the display. She drops a can that causes the leak. She places the punctured can on the shelf. (UMF 6.)

- Plaintiff entered the back aisle of Defendant's store at 7:38:42 pm. Plaintiff did so twenty-eight (28) minutes after Defendant's employee had inspected and swept the floor. (UMF 7.)

- Between the spill at 7:36:09 p.m. and Plaintiff's fall at 7:38:51 p.m., no employee walks over the area on which Plaintiff slipped and fell. (UMF 9.)

Plaintiff disputes that the creation of the spill is seen at 7:36:09 p.m., arguing that the video does not indisputably show creation of the spill. (See Pl.’s Resp. Sep. St. UMF 6.) Plaintiff further asserts that the video shows the condition of the floor that looks the same as it did before the customer drops the soda can, which is undisputed by Defendant. (PUMF 20.) Plaintiff further asserts that there is an employee in the area prior to Plaintiff’s fall. (PUMF 26.)

Here, the surveillance video does not clearly demonstrate that the slippery substance was placed on the floor at 7:36:09 p.m., and therefore is not dispositive as to when the defective condition was created. (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 14 (“We find the photographs before the trial court in this case are not conclusive on this issue and thus triable issues remain, requiring a reversal of the summary judgment.”).) There is a triable issue of fact as to how long the substance (if any) was on the floor prior to Plaintiff’s fall. Because the employee’s last sweep prior to Plaintiff’s fall was twenty-eight minutes prior to the fall, there remains a triable issue of fact as to whether the defective condition existed long enough so that a reasonable person exercising reasonable care would have discovered it.

Alternatively, Defendant has not presented enough evidence to meet its burden that Plaintiff cannot reasonably obtain needed evidence. “The defendant may […] present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admission by the plaintiff following extensive discovery to the effect that he has discovered nothing.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855.) Here, Defendant only presents evidence of Plaintiff’s response to Special Interrogatories, numbers 16 and 18, which asked for facts and witnesses to support that Defendant had actual or constructive notice. (Motion, 15.) Plaintiff responded, “Unknown at this time.” (Odabachian Decl., Exh. E.) Defendant also points to Plaintiff’s deposition testimony where she testified that she did not know how long the liquid was present on the floor. (Id., Exh. D.) This alone is not enough to show that Plaintiff cannot reasonably obtain evidence, particularly in light of Plaintiff’s evidence of Defendant’s employee in the area prior to Plaintiff’s fall.

To the extent Defendant argues in reply that there is no triable issue of fact as to the element of causation, this argument was not set forth in the notice of motion or in the motion itself. The motion argued that Defendant did not have actual or constructive notice of any dangerous condition. Accordingly, the Court does not reach Defendant’s alternative argument regarding causation.[1]

Based on the foregoing, Defendant Alpha Beta Company dba Food 4 Less’ Motion for Summary Judgment is DENIED.

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

[1] Regardless, the issue of causation is usually a question of fact for the jury, except “where reasonable men will not dispute the absence of causality.” (Constance B. v. State of California (1986) 178 Cal.App.3d 200, 207.)

DEPT:	32
HEARING DATE:	March 15, 2024
CASE NUMBER:	22STCV09659
MOTIONS:	Motion for Summary Judgment
MOVING PARTY:	Defendant Alpha Beta Company dba Food 4 Less
OPPOSING PARTY:	Plaintiff Maria Barraza