Judge Audra Mori, Case 20STCV34479 2022-10-24 Tentative Ruling

Plaintiff, Robin Arrieta filed (“Plaintiff”) this action against defendants Albertson's, Inc., Safeway, Inc., and the Vons Companies, Inc. for damages relating to Plaintiff’s slip and fall in defendants’ grocery store. Plaintiff’s operative First Amended Complaint (“FAC”) alleges a single cause of action for premises liability. (FAC ¶ 10.) Plaintiff alleges that she slipped and fell on liquid soap on the floor of the subject store. Further, Plaintiff alleges that the defendants’ employees caused the soap to be on the floor by damaging or slicing the soap’s packaging, or by placing a damaged soap bottle on the shelf. (Id. at ¶ 11.)

Defendant the Vons Companies, Inc. (“Defendant”) now moves for summary judgment as to the FAC. Plaintiff opposes the motion, and Defendant filed a reply.

Defendant argues it is entitled to summary judgment because it conducted a reasonable inspection of the property shortly before Plaintiff’s slip and fall incident, and because it did not have a reasonable time to discover and correct any hazard. Defendant asserts that Plaintiff slipped on liquid hand soap that came from another customer’s shopping cart and that Plaintiff cannot provide evidence showing that Defendant had knowledge of the dangerous condition with sufficient time to remedy it. Further, Defendant asserts that it did not create any hazard that caused Plaintiff’s fall, as surveillance footage shows the hazard was created by another customer only seconds before the incident and there is no evidence that the liquid soap bottle was cut or slit by Defendant.

Plaintiff argues that Defendant is responsible for causing the spill on which Plaintiff slipped as Defendant damaged the bottle whose leakage caused the incident. Plaintiff contends the issue of Defendant’s actual or constructive notice is irrelevant because Defendant’s employees caused the subject leak and there is a triable material issue of fact concerning such.

In Plaintiff’s separate statement submitted with her opposition, and Defendant’s response to Plaintiff’s additional material facts, the parties make objections to certain facts asserted. Objections to a separate statement are improper. (Cal. Rules of Code, rule 3.1354(b).) The Court, therefore, declines to rule on the purported objections in the separate statements.

Furthermore, Plaintiff asserts two objections to the declaration of George Beach (“Beach”) submitted with the motion. Objections 1-2 are overruled.

Additionally, Defendant submits two objections to the declaration of Mark Arrieta (“M. Arrieta”) and two objections to the declaration of David Gammill (“Gammill”) attached to the opposition. Objections 1-2 to M. Arrieta’s declaration are overruled. Objection 2 to Gammill’s declaration is sustained, as the relevant photo referenced by Gammill as Exhibit C speaks for itself. Objection 1 to Gammill’s declaration is not relevant to the disposition of the motion, and thus, the Court declines to rule on it. (CCP § 437c(q).)

Summary judgment is proper “if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Code Civ. Proc. §437c(c).) The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary judgment must show either (1) that one or more elements of the cause of action cannot be established or (2) that there is a complete defense to that cause of action. (Id. at §437c(p).) A defendant may discharge this burden by furnishing either (1) affirmative evidence of the required facts or (2) discovery responses conceding that the plaintiff lacks evidence to establish an essential element of the plaintiff's case. If a defendant chooses the latter option, he or she must present evidence “and not simply point out that plaintiff does not possess and cannot reasonably obtain needed evidence….” (Aguilar, supra, 25 Cal.4^th at 865-66.)

[A] defendant may simply show the plaintiff cannot establish an essential element of the cause of action “by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Id. at p. 854.) Thus, rather than affirmatively disproving or negating an element (e.g., causation), a defendant moving for summary judgment has the option of presenting evidence reflecting the plaintiff does not possess evidence to prove that element. “The defendant may, but need not, present evidence that conclusively negates an element of the plaintiff's cause of action. The defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence—as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing” to support an essential element of his case. (Aguilar, supra, at p. 855.) Under the latter approach, a defendant's initial evidentiary showing may “consist of the deposition testimony of the plaintiff's witnesses, the plaintiff's factually devoid discovery responses, or admissions by the plaintiff in deposition or in response to requests for admission that he or she has not discovered anything that supports an essential element of the cause of action.” (Lona v. Citibank, N.A., supra, 202 Cal.App.4th at p. 110.) In other words, a defendant may show the plaintiff does not possess evidence to support an element of the cause of action by means of presenting the plaintiff's factually devoid discovery responses from which an absence of evidence may be reasonably inferred. (Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Thus, a moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Brantly v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.)

Until the moving defendant has discharged its burden of proof, the opposing plaintiff has no burden to come forward with any evidence. Once the moving defendant has discharged its burden as to a particular cause of action, however, the plaintiff may defeat the motion by producing evidence showing that a triable issue of one or more material facts exists as to that cause of action. (Id. at §437c(p)(2).) On a motion for summary judgment, the moving party's supporting documents are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. (D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21.)

The elements of a negligence and premises liability cause of action are the same: duty, breach, causation, and damages. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Those who own, possess, or control property generally have a duty to exercise ordinary care in managing the property in order to avoid exposing others to an unreasonable risk of harm. (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.) An essential element of a cause of action for premises liability is that the premises owner knew, or reasonably should have known, about the dangerous condition on the premises. (Ortega v. Kmart Corp. (2001) 26 Cal. 4th 1200, 1206.)

“The owner of premises is not negligent and is not liable for an injury suffered by a person on the premises which resulted from a dangerous or defective condition of which the owner had no knowledge, unless the condition existed for such a length of time that if the owner had exercised reasonable care in inspecting the premises the owner would have discovered the condition in time to remedy it or to give warning before the injury occurred. Nor may the owner be found to be negligent if, having exercised ordinary care, he discovered such a condition before the time of the injury, but not long enough before to provide him the time reasonably necessary to remedy the condition or to give reasonable warning or to provide reasonable protection.” (BAJI No. 8.20.) “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.)

Nonetheless, “[w]here the dangerous or defective condition of the property which causes the injury has been created by reason of the negligence of the owner of the property or his employee acting within the scope of the employment, the owner of the property cannot be permitted to assert that he had no notice or knowledge of the defective or dangerous condition in an action by an invitee for injuries suffered by reason of the dangerous condition. Under such circumstances knowledge thereof is imputed to him.” (Hatfield v. Levy Bros. (1941) 18 Cal.2d 798, 807; see also Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 386 [where it could be inferred based on the evidence that defendant’s employees caused the dangerous condition, the knowledge of the condition was imputed to defendant].)

In this case, Plaintiff alleges that on July 24, 2020, at approximately 2:49 p.m. at Defendant’s store, Plaintiff slipped and fell on liquid detergent (the liquid soap) on the floor of the store. (UMF 1.) Defendant’s policy requires a recorded inspection and sweep of the sales floor of the store at least once per hour, and it is the policy of the subject store to endeavor to conduct a sweep and inspection of the sales floor every 30 minutes. (UMF 3-4.) Defendant’s employee, Joshua Callejas (“Callejas”), conducted a sweep and inspection of the floor in the aisle where Plaintiff fell at approximately 2:43 p.m., which is shown by security surveillance footage. (UMF 5, 8.) Callejas confirmed that it would have been his custom and practice to take any action to clean up any spills he observed during his sweep and inspection. (UMF 9.) Security surveillance shows an unknown male customer walking through the center aisle at approximately 2:48 p.m. and shows the customer appear to notice that something in his shopping cart is leaking. (UMF 10-11.) The unknown customer is seen moving some items around at which time a large pool of what appears to be liquid soap appears to form underneath his shopping cart. (UMF 12.) The customer then picks up the bottle of soap and sets it down next to a display; the customer keeps his shopping cart over the spill for several seconds and then moves his cart, so the spilled soap is exposed. (UMF 13-14.) The video then shows Plaintiff slip and fall in the area where the customer had placed the soap approximately 15 seconds after the customer had placed the soap container on the floor. (See UMF 15.)

Defendant’s store manager, Beach, is seen walking near Plaintiff and immediately going to assist her after seeing her fall. (UMF 16.) Defendant asserts that Beach observed the bottle of liquid soap and noticed the cap of the bottle was missing, and that Beach believed that the spill was caused by the customer adjusting the bottle, which caused it to leak soap from the opening where the cap was off. (UMF 18-19.) Defendant provides that Beach did not observe any cuts on the bottle or other means from which the soap could have leaked onto the floor other than the opening where the cap was missing. (UMF 20.)

Defendant avers that the evidence demonstrates that Vons did not have actual or constructive of the spill with sufficient time to remedy it and that it did not create the alleged dangerous condition. The evidence is sufficient to meet Defendant’s moving burden. The burden now shifts to Plaintiff to raise a triable issue of fact.

Plaintiff, in opposition, contends that the issue of whether Defendant had actual or constructive notice is irrelevant because Plaintiff maintains that Defendant’s employees caused the leak that she slipped on. Plaintiff argues that Defendant uses boxcutters in unpacking the product that leaked and that Defendant’s employees regularly damage products during the unpacking process. Plaintiff argues that the subject leaking bottle had a slit in it and that Plaintiff’s husband, M. Arrieta, stated the bottle was damaged in the Customer Accident Report he filled out after the incident. Plaintiff adds that Defendant’s employee promised to, but failed to, preserve the bottle after the incident.

Plaintiff is correct that the outcome of this matter depends upon whether Defendant had actual or constructive notice of the dangerous condition and/or whether Defendant created the dangerous condition. (See Getchell, 203 Cal.App.4th at 385.) Plaintiff does not challenge Defendant’s assertion that it did not have actual or constructive notice of the soap spill. Accordingly, this matter turns on whether Plaintiff can show that there is a triable issue of fact as to whether Defendant or its employees created the spill by damaging or cutting the relevant soap bottle.

In arguing that the spill was created by Defendant, as opposed to the unknown customer’s handling of the soap bottle, Plaintiff contends that Defendant’s employees use boxcutters in unpacking the product that leaked, and that Defendant’s employees regularly cut or nick products during the unpacking process. During his deposition, Beach, Defendant’s store manager, testified as follows concerning the unpacking and loading process:

Q Okay. How do, once the box gets brought to the aisle, how does the box get opened?

A Depending on the box, what type of, sometimes they are shrinkwrapped, sometimes they are just a regular box where night crew guys will hand tear open the box. If it is shrinkwrapped, they will usually trim wrap, and then they will open the wrap, then take the product out.

Q Do you know how this, this brand of soap, this size of soap arrives at your store, whether it is boxed or shrinkwrapped?

A Not at this time. It's not unknown for manufacturers to change their packing. Sometimes they will come in a regular cardboard box, all four sides cardboard, sometimes they will switch out to a tray packet, where it will be six bottles let's say in a tray, and they will shrinkwrap it instead of using all cardboard.

A They will use the box cutter to trim to like break the plastic to where they can open it up.

Q Okay. In the working of the load, is it in your experience, do products get nicked or cut by box cutters?

A To be honest, it does happen, it has happened. But usually when that does, and the clerk does do it, they usually put it in the receiving area, for depending on the product, you know, how much spillage it is…

(Opp. Gammill Decl. Exh. D at pp. 46:5-22, 47:4-6, 48:17-24.) Further, regarding examining the relevant soap bottle after the incident, Beach testified:

Q When you say you looked at the bottle, did you look at it as it is sitting there on the ground, or did you pick it and handle it?

A I did look at the bottle. I did examine it. I did not do a detail thorough exam, meaning like turning all of the way completely around to where looking for like full-on cuts. The main thing was that the cap was off, so that was my assumption that that is where the soap came from.

(Id. at pp. 23-24:20-3.) When asked if it was a “fair statement” to say that he did not know whether there was a leak anywhere else on the bottle other than the top of it, Beach agreed it was a fair statement. (Id. at p. 23:4-8.)

Additionally, Plaintiff’s husband, M. Arietta, testified at his deposition as follows concerning the location of the leak from the soap bottle:

A. From the side or the bottom, as I stated before. It wasn't coming out of the top of the bottle.

In making every reasonable inference in non-moving Plaintiff’s favor, it is possible that Defendant’s employees cut the subject soap bottle while unpacking it. Beach’s testimony demonstrates that box cutters can be used to cut through shrink wrap when the brand of the soap product arrives at the store wrapped in such. Moreover, Beach admits that in the process, products can get nicked or cut by box cutters, which would cause liquid products, such as the subject soap, to leak. Regarding the contention that Beach did not see any cuts on the bottle from where soap could have leaked onto the floor, Beach stated that he did not perform a through examine of the bottle to look for cuts and instead assumed the soap was coming from the top of the bottle because the cap was off. Furthermore, Plaintiff’s husband claimed the bottle was leaking from the side or bottom, as opposed to from the top as alleged by Defendant. To the extent Defendant questions the veracity Plaintiff’s husband’s testimony, issues of credibility are to be determined at trial, not on summary judgment.

The photos submitted of the relevant soap bottle taken after the incident show that the cap is missing from the bottle. (Mot. Beach Decl., photos attached thereto; Opp. Gammill Decl. Exhs. B-C.) The photos show the soap bottle on the floor standing upright next to two puddles of soap; there is a line of soap connecting the puddles. There is also soap seen on the front of the bottle coming down, at least partially, on the blue label of the bottle. There is a vertical line on the front label of the bottle that Plaintiff argues is a slit. However, it is unclear from the photos whether there are any cuts on the bottle from which soap could be leaking, or whether the soap is leaking only from the top of the bottle.[1]

Furthermore, the surveillance footage of the incident shows that as the unknown male customer is pushing his cart, he stops to look at his shoe as if he has stepped on something or something was already leaking from his cart. He then continues to push his cart before again looking at his shoe and then looking at his cart before reaching in and going through the items in his cart. After reaching into the cart, the customer then pulls out the subject soap bottle and places it upright on the floor. The customer then moves his cart from over the spot where the soap presumably leaked, and within approximately 15 seconds, Plaintiff slips and falls over the area where the customer’s cart was moved from. The video does not show that the customer removed the cap from the soap bottle and that this caused the soap to leak.

Although Defendant contends in its reply that there was no spillage in the area where the subject soap was displayed for sale, Defendant cites no evidence in support of this argument. Further, Defendant provides no evidence of how long the soap was displayed for sale. A reasonable factfinder could determine that a cut on the bottle caused soap to spill out onto the floor when the bottle was in the customer’s cart, which was noticed by the customer, who then put the soap bottle upright on the floor. Additionally, Plaintiff’s husband attests that he asked a store manager to preserve the subject soap bottle, but Defendant did not do so. (Opp. M. Arrieta Decl. ¶¶ 4-5.) Defendant does not dispute failing to preserve the bottle such that it can no longer be inspected. Nevertheless, a party opposing summary judgment may rely on circumstantial evidence and inferences arising from declarations or other evidence, to defeat summary judgment, as long as such inferences are reasonable and not based on speculation or surmise. (Annod Corp. v. Hamilton & Samuels (2002) 100 Cal.App.4th 1286, 1298-99.) Plaintiff’s evidence is sufficient to raise a triable issue of fact as to whether Defendant created the subject spill by cutting the subject soap bottle. (See Getchell, 203 Cal.App.4th at 385 [“Where, however, ‘the evidence is such that a reasonable inference can be drawn that the condition was created by employees of the [defendant], then [the defendant] is charged with notice of the dangerous condition.’”].)

Hon. Audra Mori

Judge of the Superior Court

[1] In its briefing, Defendant recognizes,

“Plaintiff further claims that the photographs of the bottle show such a slit and claim the puddles on the floor are consistent with having been caused by a slit in the bottle notwithstanding clear evidence the cap is missing from the top of the bottle. The photographs could just as easily be reasonably inferred to show that the puddles of soap on the floor were caused by the bottle spilling onto the floor because the cap was somehow removed when the customer was handling the bottle of soap in his shopping cart.” (Reply at pp. 6-7.)

This indicates that (1) the photos raise issues of fact and (2) Defendant has not presented undisputed evidence that the customer actually removed the cap from the bottle of soap.